One of the most common questions couples ask when building a prenup is: “Can you waive spousal support in a prenup?”
The short answer: yes, you can include a waiver of spousal support in a prenuptial agreement (also called a marriage contract in Canada). But whether that waiver will hold up in court depends on fairness, disclosure, and sometimes on whether both partners had proper legal advice.
This guide breaks down what spousal support is, why couples address it in prenups, whether you can waive it, and the risks and benefits of doing so.
A prenuptial agreement (prenup) is a legally binding contract couples sign before marriage. In Canada, prenups are often called marriage contracts under provincial family law.
Prenups give couples the ability to plan ahead, instead of leaving everything to default family law rules if the marriage ends.
The purpose of a prenup is to:
Spousal support, often called alimony in the U.S., is money paid by one spouse to the other after separation or divorce.
Its purpose is to:
Support amounts in Canada are guided by the Spousal Support Advisory Guidelines, which consider factors like income differences, length of the relationship, and caregiving roles.
Spousal support is one of the most common – and most contentious – issues in separations. By addressing it in a prenup, couples can:
Yes. A prenup can include a spousal support waiver, where both partners agree not to claim support if they separate.
However, Canadian courts do not automatically enforce waivers. Judges always retain discretion to override clauses if enforcing them would be unfair or leave one spouse in financial hardship.
For example, if one partner left the workforce to support the other partner’s career or care for children, it’s unlikely that a judge would enforce an agreement that did not provide spousal support to the partner who made career and financial sacrifices for the family.
To waive spousal support means agreeing that neither partner can seek financial support from the other if the relationship ends.
In Canada, yes, it’s legal to include a waiver of spousal support in a prenup. But legality and enforceability aren’t the same thing.
Courts will ask:
If the waiver is unconscionable (grossly unfair), a court can strike it down – meaning that part of your agreement will not be followed. You can protect against this outcome by making an agreement that values the financial and non-financial contributions of both parties, and reviewing and updating your agreement regularly as circumstances change.
Each province approaches prenups slightly differently:
This means enforceability varies. A waiver may stand in some provinces but be challenged more easily in others. It’s important to know the specific rules in your province. You can sign up for our Agreement Starter Kit for free to get familiar with the law in your province.
While waiving spousal support may seem appealing, it comes with risks:
If you want to include a waiver, follow best practices to increase enforceability:
Yes, prenups (marriage contracts) are enforceable if they meet legal requirements – full financial disclosure, fairness, and independent legal advice in some provinces. However, courts can override terms that are unfair.
Yes. Instead of a full waiver, couples may limit the amount, set a maximum duration, or agree to a lump sum payment.
While technically not required in all provinces, having independent legal advice is very helpful for enforceability. Without it, courts are far more likely to strike down the agreement.
In Canada, you cannot always avoid spousal support. A prenup can help limit or waive support, but courts can override waivers. The best way to minimize risk is to create a fair, transparent agreement with proper legal advice.
So, can you waive spousal support in a prenup?
Yes, you can. But Canadian courts always look at fairness first. A prenup can help set expectations and limit disputes, but it cannot absolutely guarantee that spousal support will never be ordered.
At Jointly, we make it simple for couples to create clear, fair, and affordable agreements. With the right approach, you can address spousal support in your prenup in a way that gives both partners confidence.
👉 Ready to create your prenup? Visit getjointly.ca to get started.
Amanda BaronI'm Amanda, one of the founders of Jointly. I've been working as a lawyer in British Columbia for over ten years. I have a deep commitment to access to justice and building stronger, more resilient communities. I’ve always believed that everyone deserves affordable, clear, and accessible legal solutions to navigate life’s big moments.