Prenuptial agreements, often simply called prenups, are gaining traction in Canada as couples recognize the value of proactive relationship planning. But what happens if there is no prenup? The answer isn’t always straightforward. In this article, we’ll explore how Canadian law handles property division, support, and legal responsibilities in the absence of a prenup or marriage agreement—and why Canadian couples at any life stage and income bracket should consider making one.
What Happens If You Don’t Sign a Prenup in Canada?
How Courts Divide Assets Without a Prenuptial Agreement
If you don’t have a prenup, courts use provincial family law to determine how property is divided. For married couples in most provinces, this means an equal division of family property—assets acquired during the marriage, or the increase in value of assets acquired by either person before marriage—regardless of whose name is on the title.
This includes:
- The family home
- Shared bank accounts
- Pensions and retirement funds
- Business interests accumulated during the marriage
Without a prenup, separate property (such as gifts or inheritances, the ownership of which typically remains with the recipient) may also be subject to division if it was used for the benefit of both spouses.
Alimony and Spousal Support When You Don’t Sign a Prenup
When a marriage or a long-term relationship ends, one person may ask the other person to pay spousal support. No one is automatically entitled to receive spousal support. If you don’t have a prenup setting out your plan for spousal support, you may have to ask a judge to make a decision for you if you can’t agree.
These are some of the things judges look at to decide whether someone is entitled to spousal support:
- The length of the relationship
- The difference in income between the spouses
- Whether one spouse had responsibilities during the relationship that prevented them from building their own career—for example, if one spouse left the workforce to care for children
- Whether one spouse has less earning capacity, whether due to child care, medical conditions, or other factors
- Financial need
If one person is able to show that they are entitled to receive spousal support based on one or more of these factors, a judge would then look at the couple’s finances to determine what amount should be paid and for how long. Judges often use the Spousal Support Advisory Guidelines to determine this. The guidelines are not law—but they are widely accepted as an efficient way to calculate spousal support.
Should I Sign a Prenup? Understanding the Benefits
What Does Signing a Prenup Mean for Your Marriage?
Signing a prenup means that both partners agree on how to handle financial matters during your relationship and if the relationship ends. It’s a proactive, intentional way to create transparency and reduce future conflict.
Rather than a sign of mistrust, a prenup can:
- Clarify expectations
- Reduce the emotional and financial toll of separation
- Empower both partners to make informed decisions
Protecting Your Assets by Signing a Prenup in Canada
A prenup protects assets acquired before marriage, business interests, and future inheritances. It allows couples to:
- Specify what property is excluded from division
- Set terms for spousal support
- Outline how new assets will be treated
Especially in blended families or second marriages, a prenup can safeguard inheritance plans for children from previous relationships and reduce disputes within the couple and with their wider family.
What Happens If You Sign a Prenup and Get Divorced?
If you sign a prenup and later divorce, the agreement acts as a roadmap. Courts generally uphold prenuptial agreements in Canada if they:
- Are signed voluntarily
- Include full financial disclosure
- Are fair and comply with public policy
The prenup will guide how assets and debts are divided, how spousal support is handled, and may even prevent litigation. Ultimately, prenups act as a form of insurance for your relationship. You hope you’ll never have to use it, but you’ll be glad it’s there if you do.
Is a Prenup Right for You? Key Considerations
What Is a Prenuptial Agreement and Who Needs One?
A prenuptial agreement is a written contract between two people before they marry. It outlines how assets, debts, and financial responsibilities will be handled during the marriage and in the event of a separation or divorce.
While often associated with wealth protection, a prenup can benefit any couple by providing financial clarity and setting expectations.
You should consider a prenup if:
- You own significant assets before marriage
- You or your partner have substantial debts
- One of you owns a business
- You expect to receive a large inheritance
- You have children from a previous relationship
- One partner earns significantly more than the other
Even if these circumstances don’t apply, we think a prenup is a good idea for everyone. If nothing else, it establishes what assets each party is bringing into the marriage and ensures both of you are on the same page about financial expectations in the future.
How Does a Prenup Work in Canada for Common Law Couples?
Common law couples may need a cohabitation agreement, which functions similarly to a prenup. Without it, property laws vary by province and may not provide equal protection.
In some provinces, common law partners do not have the right to property division at all. A marriage agreement or cohabitation agreement ensures fair treatment if the relationship ends.
Marriage Agreements vs. Prenups: What’s the Difference?
The term “marriage agreement” is often used interchangeably with “prenuptial agreement” in Canada. Marriage agreements are also sometimes called post-nuptial agreements or “postnups.”
The only real difference is when the agreement is made:
- Prenuptial agreement: Signed before marriage
- Marriage agreement (postnup): Typically signed after the wedding
Aside from the name, both types of agreements address the same subject matter—how to handle your finances during your marriage, and in case it ends.
Taking Control of Your Future: Why Signing a Prenup Matters
How Prenups Can Prevent Costly Disputes During Divorce
A well-drafted prenup provides clarity and reduces legal costs. Without one, divorce proceedings can take years and cost tens of thousands of dollars in legal fees.
Signing a prenup means decisions are made together when things are amicable, rather than in court when tensions are high. The goal when you make a prenup and review it regularly is to avoid court disputes altogether, because both people have been on the same page about their finances and plans for the future throughout their marriage.
Debunking Myths About Prenuptial Agreements
The Truth About Prenups in Canada
Myth: Prenups are only for the ultra-wealthy
Reality: Prenups are for anyone who wants clarity and fairness in their relationship.
Myth: Prenups mean you plan to divorce
Reality: They’re an insurance policy, not a prediction. Just like you buy home insurance, a prenup is a tool for managing risk.
Is a Prenup Legal in Canada?
Yes, prenups are legally binding in Canada, provided they meet legal requirements, including:
- Full financial disclosure
- Independent legal advice
- Fairness
What Makes a Prenup Invalid?
A prenup may be invalid if:
- One party was coerced into signing
- There was a lack of full financial disclosure
- The agreement is excessively unfair to one party
- One party didn’t receive independent legal advice
Why Prenups Aren’t Just for the Wealthy
Even couples with modest means benefit from:
- Clarifying debt responsibility
- Protecting inheritances
- Setting spousal support terms
- Protecting a business owned by one person
- Accounting for sacrifices made by one person to care for children
These are issues that are important no matter your income level. At Jointly, we also firmly believe that getting on the same page about your finances early in your relationship will pay significant dividends over the years.
How to Approach Prenups in Canada
Steps to Create a Prenup That Works for Both Partners
- Start Early – Don’t wait until just before the wedding
- Be Transparent – Full disclosure of assets and debts is essential
- Be Fair – Courts may not uphold a prenup that heavily favors one party
- Take Your Time – Courts are unlikely to uphold a prenup when there has been pressure or duress placed on one person to sign it
How to Discuss Signing a Prenup Without Conflict
Approach the conversation with openness:
- Focus on planning, not fear – we make wills, we get house insurance – why not make a financial plan for your relationship?
- Emphasize fairness and protection for both parties
- Use online tools (like Jointly!) to guide you through the process in a collaborative and loving way
TL;DR: What Happens If There Is No Prenup?
Your relationship is governed by provincial laws that may not reflect your wishes. Signing a prenup puts you in the driver’s seat, protecting assets, setting fair expectations, and reducing conflict.
For couples in Canada looking to build a strong foundation, a prenup or marriage agreement isn’t just smart—it’s empowering.
Get started with Jointly’s easy, affordable prenup builder here.
I founded Jointly because I want to empower more Canadians with the knowledge and tools to create relationship agreements that work for them, at a price they can afford. My big dream? That reaching more Canadians with Jointly ultimately keeps more families out of the court system when relationships breakdown, which can be slow, expensive and traumatic. (I may or may not have personal experience with this 😅)
When I'm not lawyering, I'm most likely hiking with my dogs, kayaking the coastal waters around North Vancouver, or hitting the sauna and cold plunge.
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