Prenuptial agreements (commonly known as “prenups”) are no longer just for the ultra-wealthy. More and more couples in Canada are using prenups as a practical tool to protect each other, reduce future conflict, and start their marriages with clarity and mutual understanding. But in order for a prenup to hold up in court, it must meet certain legal requirements.
In this guide, we’ll walk through what a prenup is, why you might want one, and what makes a prenuptial agreement legally valid in Canada.
What Is A Prenup In Canada?
A prenuptial agreement is a type of marriage contract made between two people before they get married. It sets out how property, debt, and other financial matters will be dealt with if the relationship ends in separation, divorce, or death. In Canada, prenups are governed by provincial family law legislation, and while the specifics vary slightly by province, the general legal requirements are quite consistent across the country.
Why Should You Get A Prenup?
People choose to get a prenup for all kinds of reasons. Here are some of the most common:
- You or your partner own a business and want to protect it.
- One of you has significantly more assets or debt.
- This is a second marriage and you want to preserve assets for children from a previous relationship.
- You want clarity around how property will be divided if the relationship ends.
- You want to avoid the default rules in your province, which may not fit the circumstances of your relationship.
If you’re asking yourself, “why get a prenup?”, the answer often comes down to control: you get to decide together what’s fair for your relationship instead of leaving it to the courts or provincial legislators. Making a prenup also gives you the opportunity to make decisions together when your relationship is at its best, so you don’t have to try to come to an agreement later if things don’t work out.
Legal Requirements For A Valid Prenup In Canada
For a prenup to be valid in Canada, it must meet certain legal requirements. If these requirements aren’t met, the agreement may not be enforceable if one of you challenges it down the road. If you want your prenup to stand up to challenge, you must ensure these requirements are met.
Written Agreement
A valid prenup must be in writing. Verbal agreements are unlikely to be recognized by the courts. Think about it – if you haven’t written anything down and you later have different memories about what was agreed to, it’s pretty hard for a judge to determine what actually happened.
The written contract should be clear, detailed, and specific about how property and debts will be handled. If you use Jointly, we can help you with this part!
Full Financial Disclosure
Both parties must fully disclose their financial situation, including all assets, liabilities, income, and other relevant information. Without full transparency, one party may later claim they didn’t understand what they were agreeing to—potentially making the prenup invalid.
We’ve built a financial disclosure worksheet to guide you through this process. You can get started on that for free by clicking here!
Legal Advice
If you’re wondering “is a prenup valid without a lawyer?”, the truth is that it can be risky. As you’ve learned, prenups can be complicated. Trying to write your own is not recommended. Using Jointly’s lawyer built platform is a great way to ensure your document will be legally compliant. It can also help for each person to get independent legal advice. This is not required in most provinces for your agreement to be valid, but it does provide further assurance that both people understand the terms and aren’t being pressured into signing. If you have the budget for it, it’s great to get independent legal advice on your Jointly prenup.
No Duress or Coercion
A prenup must be signed voluntarily. If one partner was pressured, manipulated, or rushed into signing – especially close to the wedding date – the agreement could be challenged later. This is why it’s important to start the process early.
Fairness and Reasonableness
While you can create your own terms, the agreement must be generally fair and reasonable. Courts can set aside an agreement that is heavily one-sided, especially if one partner would be left in a significantly worse position.
For example, if one person works outside the home to provide financially for the family, and the other person gives up their career to care for children, a judge is unlikely to think that a prenup that doesn’t provide any spousal support for the person who sacrificed their career is fair and reasonable.
Signed Before Marriage
To be valid, a prenup must be signed before the wedding. Once you’re legally married, you’ll need a postnuptial agreement instead. The subject matter of a postnuptial agreement is the same – the only difference is whether you’re married or not when you make your agreement.
What Can Make A Prenup Invalid In Canada?
A prenup may be found invalid for several reasons:
- One or both parties failed to disclose important financial information.
- The agreement isn’t drafted clearly or in compliance with the law in your province.
- One party signed under pressure or without time to reflect.
- The agreement was unconscionably unfair.
- The agreement attempts to waive legal obligations like child support (which cannot be contracted out).
- The agreement was never reviewed or updated despite significant changes in circumstances.
If you’re wondering, “can a prenup be challenged?”, the answer is yes – but courts tend to uphold them if they meet the legal requirements.
Common Mistakes That Invalidate a Prenup
Here are a few pitfalls that could make a prenup unenforceable:
- Using a one-size-fits-all template without customizing it for your situation
- Hiding debts or downplaying the value of assets
- Failing to update the agreement if circumstances change
- Not reviewing the agreement after a major life event (e.g., birth of a child)
Are Prenups Enforceable In Every Province In Canada?
Yes, prenup laws apply across Canada, but there are slight differences in how each province treats marriage contracts. For example, some provinces have unique rules around spousal support, pensions, or matrimonial property. It’s important to ensure your agreement complies with the laws of the province where you live or where you may separate.
Can A Prenup Be Challenged In Canada?
Yes. A prenup can be challenged in court, especially if:
- It was signed under duress
- There was a lack of financial disclosure
- The terms are grossly unfair
- One party didn’t receive legal advice
That’s why it’s important to follow the legal requirements closely and use a platform like Jointly or visit a lawyer in your area when drafting the agreement.
Can You Change A Prenup In Canada?
Absolutely. If both partners agree, you can change a prenup after it’s been signed. This is typically done through an amending agreement or a new contract. This can be helpful if your financial situation changes, you have children, or you simply want to revise your arrangements. A prenup is stronger if you don’t treat it as a “sign it and forget it” document. You should review it regularly, and update it when life changes.
How To Get A Prenup In Canada?
If you’re wondering how to get a prenup, here’s a quick overview:
- Start early. Give yourselves time to reflect and negotiate.
- Disclose your finances honestly and completely.
- Use a tool like Jointly to build your agreement with guidance.
- Get independent legal advice before signing.
- Sign well before the wedding.
Using a reliable online platform like Jointly can help you draft a personalized, legally sound agreement easily and on your timeline.
Can I Create My Own Prenup In Canada?
You don’t need to see a lawyer to make a prenup in Canada, but as you’ve learned above, there are a lot of requirements that need to be met for your prenup to be valid. If you don’t meet all of the requirements, your agreement could be overturned – meaning it won’t be there to protect you if you need it in the future. A contested divorce can cost tens of thousands of dollars in legal fees – why risk it?
Jointly offers a guided process to help you build your prenup collaboratively and confidently, for only $379.
FAQs
Is a prenup valid after death?
Yes, prenups often include terms about how property will be divided if one spouse dies. However, these provisions must be consistent with your estate plan and applicable provincial laws.
Is a prenup valid without a lawyer?
Technically, yes – but it’s not recommended. Courts may view an agreement as invalid if one party didn’t understand the terms or didn’t get legal advice. Using a platform like Jointly or getting independent legal advice strengthens your prenup.
Is a prenup valid after 10 years?
Yes, as long as the agreement remains fair and circumstances haven’t changed drastically. It’s a good idea to review and possibly update your prenup over time to reflect your circumstances as life changes.
Creating a valid prenuptial agreement doesn’t have to be intimidating. With the right tools and guidance, you can build a prenup that gives you peace of mind – and a strong foundation for your future. If you’re ready to get started, Jointly can help you every step of the way.
- Grounds To Challenge A Prenuptial Agreement in Canada - June 2, 2025
- Marriage Contract Vs Prenuptial Agreement - May 30, 2025
- What Is A Marriage Contract? - May 29, 2025
