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.
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:
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.
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:
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.
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:
A prenup protects assets acquired before marriage, business interests, and future inheritances. It allows couples to:
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.
If you sign a prenup and later divorce, the agreement acts as a roadmap. Courts generally uphold prenuptial agreements in Canada if they:
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.
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:
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.
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.
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:
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.
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.
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.
Yes, prenups are legally binding in Canada, provided they meet legal requirements, including:
A prenup may be invalid if:
Even couples with modest means benefit from:
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.
Approach the conversation with openness:
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.
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.