A prenuptial agreement (or “prenup”) can be an important part of building a strong financial foundation in a relationship. However, not all prenups are created equal. In Canada, if a prenup isn’t made properly, it could be declared invalid by a court which means that it won’t provide any protection at all.
This guide explains what makes a prenup invalid, common mistakes to avoid, and how you can protect yourself by creating an agreement that’s clear, fair, and enforceable.
A prenuptial agreement (also sometimes called a prenup or a marriage agreement) is a legal document that couples sign before getting married. It outlines how property, debts, and financial matters will be handled during the marriage and if the marriage ends in separation or divorce.
Prenups are governed by provincial and territorial family laws across Canada, and each province has its own rules for what makes a prenup valid and enforceable.
Prenups help couples:
A well-prepared prenup provides peace of mind and clarity for both partners.
Several key issues can make a prenup vulnerable to being overturned by a court. Here’s what to watch out for:
One of the main reasons a prenup can be invalidated is failure to fully disclose financial information.
Both partners must provide complete and honest information about:
If either party hides significant assets or debts, the agreement can be challenged and possibly set aside (meaning a judge won’t follow what it says if there’s a dispute). This is because an agreement made on the basis of false or incomplete information is unlikely to be seen as a fair agreement by a judge. Complete honesty is non-negotiable.
Prenups must be signed voluntarily, without pressure, threats, or coercion.
Signs of coercion could include:
In Canada, a prenup signed under pressure is unlikely to be enforced by a judge.
Courts can refuse to enforce a prenup if the terms are grossly unfair or unconscionable at the time of enforcement.
For example:
Canadian courts prioritize fairness, especially where major power imbalances exist. If one person earns the income while the other stays home to care for children, it is very unlikely that a court will consider it fair if a prenup does not compensate the person who gave up career opportunities for responsibilities at home through spousal support or a transfer of assets. A good prenup values the contributions of both partners to the success of the relationship, whether those contributions are financial or not.
A prenup must meet certain formalities, including:
Skipping any of these steps risks making the agreement invalid. To be even more certain of your agreement’s validity, each partner can have their own lawyer sign a certificate of independent legal advice. This proves that both partners knew and understood what the agreement meant before they signed it. We’ve included these forms as part of every Jointly agreement.
Prenups cannot include terms that:
Adding invalid clauses can cause parts, or even all, of the agreement to be unenforceable. We recommend using Jointly’s platform or obtaining the services of a lawyer in your province to create your agreement to avoid this risk.
In Canada, prenups do not expire automatically. Once signed, they remain in force unless:
Prenups can also include clauses that require review or termination after a certain period. Couples can also revise them as needed. We recommend reviewing your prenup whenever you have a significant life change, to ensure that your agreement is still the right fit for both of you. We’ve included a review process with every Jointly agreement.
To keep your prenup strong over time:
Proactive reviews help ensure the agreement stays aligned with your current circumstances, and helps to show that both partners continued to be on the same page throughout their relationship.
If you believe a prenup you signed is invalid, you can ask the court to review it. This involves filing a claim (also referred to as commencing an action) with the court in your province.
You may be able to challenge a prenup if:
Each situation is different, and whether you are able to successfully challenge your prenup will depend on the specific facts of the case.
If you think your prenup is invalid, or if your partner is trying to challenge it, it’s essential to speak to a family lawyer. A lawyer can help assess your agreement, explain your rights, and represent you in court if needed.
At Jointly, we make it easy to create a clear, fair, and legally valid prenup with our online platform, designed by lawyers, specifically for Canadians.
When you use Jointly, you get:
Jointly empowers you to protect your relationship, your assets, and your peace of mind, without the overwhelming cost or stress of traditional legal services.
Yes. In Canada, you can change a prenup after marriage by signing a new agreement or an amendment. Both partners must agree in writing, and the updated agreement should meet the same legal standards as the original.
Not necessarily. In Canada, a prenup doesn’t have to be notarized to be valid. Some provinces have specific requirements around independent legal advice. If you build your agreement with Jointly, we’ll walk you through the requirements for your province.
It is possible to write your own prenup, but it is not recommended. As you’ve learned, there are a number of rules and formalities that must be followed in order for a prenup to be valid. If those aren’t followed, your prenup may not be enforced and will not provide any protection in case of a later separation. Why risk it? Jointly makes it quick, easy and affordable to create a legally valid prenup, entirely online on your schedule.
Ready to create a prenup that protects your future and stands up to scrutiny? Click here to get started!
Aimee SchallesHi, I'm Aimee, a co-founder of Jointly. I’ve been working as a lawyer in British Columbia for over ten years. I run a small law firm and love helping people solve everyday problems. I’ve seen the difficulties that ordinary people face in accessing reliable legal services. I’ve also seen many friends and clients go through challenging separations that could have been improved if they’d have had a prenup or cohabitation agreement. I hope Jointly helps people make the relationship agreement they’ve been thinking about! Latest posts by Aimee Schalles (see all)