Pre-nuptial & Marriage Agreements

Law

People who are engaged or married may want a contract about what will happen during the time they are married, and if they later separate. See the sections below to learn about:

  • What a pre-nuptial agreement is
  • What a marriage agreement is
  • Who can make a pre-nuptial or marriage agreement
  • How to make a pre-nuptial or marriage agreement, and the basics about contract law
  • The requirements for a legally binding pre-nuptial or marriage agreement under Alberta’s Matrimonial Property Act
  • Other marriage contract issues: dower rights, the Muslim Mahr and the Jewish Get

Choose the Process tab above for detailed information about the steps involved when making a pre-nuptial or marriage agreement.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: August 2016
Who is this Information Page for?

This Information Page is for people who want to create an agreement to govern their marriage and what would happen if they separate. If you enter into an agreement like this before you get married, it is called a pre-nuptial agreement. If you enter into an agreement like this after you get married, it is called a marriage agreement.

This Information Page can help you understand:

  • what must be included in any agreement;
  • what must never be part of any agreement;
  • what can happen if a judge decides there is something wrong with your agreement, or how it was reached; and
  • how knowing your rights can help you make a better agreement.

Be Aware

When writing an agreement, you cannot ignore the law. If you include any terms in your agreement that are against the law, those terms will not stand up in court

If you are not sure if you are married or not, see the Getting Married Information Page.

You may be currently living with your partner or plan to move in together soon, but do not plan get married (at least not right away). You can still create an agreement to govern your relationship and what would happen if you separate. This is called a cohabitation agreement. It can it can be used for romantic and non-romantic relationships as long as you are already living together, or plan to live together in the near future. For more information about this kind of agreement, see the Cohabitation Agreements Information Page.

In general, the law and process on this Information Page are for people who live in Alberta. If you think you may move outside of Alberta in the future, see the “Domestic contracts across borders” section of the New Relationships and Out-of-Province Issues Information Page.

There are practical concerns and considerations when you are coming to an agreement on your own. These include negotiation strategies and drafting requirements. For more information, see the Coming to an Agreement on Your Own Information Page.

You do not have to come to an agreement on your own. There are lots of resources available to help you come to an agreement. To learn about how a mediator might be able to help you come to an agreement, see the “Mediation” section of the Alternative Dispute Resolution Information Page. You can also work with a lawyer to help you draft an agreement and tell you about your legal rights. See the Working with a Lawyer Information Page for more information.

If you already have a pre-nuptial agreement or marriage agreement and want to know what happens when your relationship ends, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about pre-nuptial and marriage agreements. For information on the process you need to follow to create your agreement, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

The first topic is What the words mean. Please read this section even if you think you already know what the words mean. In order to understand the resources on this page, you will need to understand the legal terms.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

contract

A formal agreement by two or more people (or groups) to do something, or to not do something. The agreement can be enforced by law if it meets the legal requirements of a contract. For more information, see the “Before you begin: Contract law basics” section below.

domestic contract

A legal agreement between 2 or more people who are either:

  • living together (whether married or not);
  • will soon be living together (whether married or not); or
  • were living together (whether married or not) and are now ending their relationship.

A domestic contract allows the parties (romantic or non-romantic) to create their own terms for their relationship. This may include rights and responsibilities they have toward one another during the relationship, as well as after the relationship ends. Or, if they are ending the relationship, it allows them to decide for themselves how to resolve the issues between them. Some examples of domestic contracts are cohabitation agreements, pre-nuptial agreements, marriage agreements, and separation agreements.

binding (to bind)

Creating an obligation or duty that cannot be broken or changed. For example: if people make a “binding” agreement, it means that the parties must follow the terms of the agreement.

Be Aware

Only those who have signed the binding agreement must follow it. The agreement does not bind anyone else.

take effect

To start to apply. For example: a contract can be signed on March 15, but the terms of the contract may not start to apply until April 1. In this case, the contract “takes effect” on April 1.

spouse

A person who is married to another person.

Be Aware

Some of the resources linked on this Information Page use the term “spouse” to describe both married partners and unmarried partners.

pre-nuptial agreement

A contract created by 2 people who are planning to get married in the near future. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends. The parties can address many issues regarding their marriage, such as:

  • how bills will be divided;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

marriage agreement

A contract created by 2 people who are already married. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends. The spouses can address many issues regarding their marriage, such as:

  • how bills will be divided;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the spouses if they were to separate.
Be Aware

Some of the resources linked on this Information Page use the term “marriage agreement” to describe any agreement that governs a marriage—regardless of whether the agreement is signed before or after two people get married.

cohabitation

Living together in the same home.

cohabitation agreement

A contract created by 2 or more people who:

  • live together, or are about to live together; and
  • are not married, and do not plan to get married in the near future.

In this agreement the parties can address many issues, such as:

  • how bills will be divided between the parties;
  • whether one party will pay partner support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

independent legal advice

Guidance from a lawyer about a contract a person wants to sign before he or she signs the contract. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities. In order for the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

negotiation

Any process where there is a “discussion” to resolve a disagreement or conflict, and the people involved try to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you.

“best interests of the child”

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • the child’s opinion (if the child is mature enough to form an opinion).

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

“set aside” an agreement

When a court “sets aside” an agreement, it believes that making one of the parties carry out his or her “end of the deal” would not be right. Another way of saying “setting aside” is “striking down.”

An agreement can be set aside for many reasons, such as:

  • one party was pressured, forced, or tricked into signing the agreement (this may also be called “undue influence”);
  • one party did not have the “capacity” to enter into the agreement (that is, they did not have the legal ability to understand the agreement);
  • the parties involved in the agreement did not give each other full and accurate information (that is, they did not provide each other with complete “disclosure”); or
  • any of the parties did not understand what they were signing.

By setting an agreement aside, a court is basically cancelling it. A court can set aside:

  • the whole agreement;
  • just a particular part; or
  • several parts of the agreement.

financial disclosure

The process of giving your financial information to someone else. This information usually includes such things as:

  • tax returns
  • income information (such as pay stubs)
  • a list of property you own (including the current value)
  • statements about investments you have (including the current value)

Depending on the situation, it may include much more information.

When separating or divorcing, parties give each other this information so that fair solutions can be reached. If you are going to court about child support, spousal/partner support, or division of property, this information will be required by the court.

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are two parts to mental capacity:

  1. the ability to understand the nature of a decision (including understanding all of the information that is relevant to a particular decision); and
  2. the ability to understand the consequences of making a decision (that is, a person with capacity would understand what could happen as a result of making a certain decision).

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor's opinion or a judge's decision).

consent

To give permission for something to happen, or to agree to do something. Only people with capacity can consent.

clause

The term “clause” usually means a sentence or phrase in a written agreement or court order that has some particular meaning or function.

For example, a “severability clause” in an agreement is a sentence that says everything in the agreement is separate from one another. This means that if a part of the agreement is not enforceable under the law, it will not affect the rest of the agreement. So every time someone uses the term “severability clause,” it means a sentence that has this particular function (although the wording of the clause may be different in each agreement or order).

“waive” something

The act of voluntarily giving up a right or privilege. For example: if someone waives his or her right to spousal support, that means he or she is choosing to give up the right to make a claim for spousal support.

waiver

A document or part of a document that records the waiving of someone’s right or privilege. For example: when you waive your right to spousal support and you want to put it in writing, the document you sign is called a spousal support waiver.

“contract out of”

Agreeing in a contract to not be included in something.

For example: the law often sets “standard” rights and responsibilities. The terms of a contract can sometimes change some of these rights and responsibilities. In other words, you can contract out of those rights and responsibilities.

Be Aware

There are limits to the legal rights and responsibilities you can contract out of. These are discussed on this Information Page.

enforcement

Forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order.

The laws that may apply to you

A pre-nuptial or marriage agreement is signed at a time when the parties are not facing separation. However, the parties may want to consider the laws that would apply if they were to separate in the future. Much of the goal of having a domestic contract is to figure out what will happen if the parties separate.

As you work through your legal questions, you may wish to read the laws (also called “statutes” or “acts”) that apply. The laws included on this Information Page are:

Web Divorce Act (and associated Regulations)
Government of Canada
English

Web Family Law Act (and associated Regulations)
Government of Alberta
English


Web Dower Act (and associated Regulations)
Government of Alberta
English
Be Aware

For division of property, you will have to use Alberta’s Matrimonial Property Act. But but when it comes to spousal support, child support, and custody/access issues, you have a choice between Canada’s Divorce Act and Alberta’s Family Law Act. For more information, see the “The federal Divorce Act & the Alberta Family Law Act” section just below.

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?

On this Information Page, you may be directed to other Information Pages on this website that will discuss a specific topic in more detail. Often, you will see that at least two Information Pages appear to deal with the same issue. For example: “Child Support under the Divorce Act” and “Child Support under the Family Law Act.” These are not the same things—they refer to different laws. 

If you separate from your spouse in the future, you may have to deal with issues related to support and parenting. For these issues, married people may have a choice about which law to use. Specifically, you can use Canada’s Divorce Act, or Alberta’s Family Law Act. The choice of which law to use is extremely important. These two laws have important differences that could affect your rights and responsibilities. For example: child support awarded under the Family Law Act ends when the child turns 22, but child support awarded under the Divorce Act has no required end date.

For information about choosing which law to use, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

Be Aware

The Family Law Act uses terms that are typically associated with unmarried people. For example, the term “partners” is used rather than “spouses.” However, the statute applies to both married and unmarried people. Don’t let the words confuse you.

Keep in mind that if you want to legally end the marriage, you must use the federal Divorce Act for the divorce itself. And, for division of property, you must use Alberta’s Matrimonial Property Act.

What is a pre-nuptial agreement or marriage agreement?

A pre-nuptial agreement is a domestic contract created by 2 people who are planning to get married in the near future. A marriage agreement is a domestic contract created by 2 people who are already married.

In a pre-nuptial or marriage agreement, the parties can set out the terms that will govern:

  • important issues during their relationship; and
  • what will happen if they later separate.

In Alberta, there is no general requirement that the content of a pre-nuptial or marriage agreement has to meet everyone’s personal definition of “fair.” However, the legal requirements of a contract must be met. Also, the parties must understand their rights and what they are signing. See the section below called “Before you begin: Contract law basics” for details about the legal requirements of contracts.

A pre-nuptial or marriage agreement is a good way for the parties to set their own “rules” for their relationship. The parties involved are largely free to contract as they wish. However, the law still applies. Your agreement must follow the law.

For more general information about pre-nuptial and marriage agreements, and other domestic contracts, see the following resources.


Web An introduction to Alberta prenuptial agreements
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here.

PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here. See p. 5-9.

Web Making an agreement when you live together
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web What are domestic contracts?
Luke's Place
English
This resource is from outside Alberta. Learn more here.

PDF Fiche d'information sur les contrats familiaux
Luke's Place
French
This resource is from outside Alberta. Learn more here.

Web “Pre-nups”, Cohabitation Agreements and Marriage Contracts
Patriot Law Group
English
This is a private source. Learn more here.

Video Prenups: What are they? Why get one?
AdviceScene (via YouTube)
English
This is a private source. Learn more here. Start at 7:30.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more here. Choose your language, then see topic #6.

Audio Family Law Topics in Audio
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here. Choose “Domestic Contracts.”

Video Domestic Contracts: ASL
Metropolitan Action Committee on Violence Against Women and Children
American Sign Language
This resource is from outside Alberta. Learn more here.

Web Family Law: Domestic Contracts
Public Legal Education and Information Service of New Brunswick
English
This resource is from outside Alberta. Learn more here.

Web Droit de la famille : Contrats domestiques
Public Legal Education and Information Service of New Brunswick
French
This resource is from outside Alberta. Learn more here.

Web Prenuptial Agreement Lawyers
Kahane Law Office
English
This is a private source. Learn more here.

Web Post Nuptial Agreement
Behrendt Professional Corporation
English
This resource is from a private source outside Alberta. Learn more here.

Web What Are Post-Nuptial Agreements and Why You Might Need One?
Kahane Law Office
English
This is a private source. Learn more here.

PDF Domestic Contracts: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.

The following resources are not available online. The links below will give you a preview of each resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 15.
Book The Domestic Contract – Which is Which and When to Use It (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Who can make a pre-nuptial or marriage agreement and when can you do it?

Pre-nuptial agreements

Pre-nuptial agreements are made by anyone who is planning to get married. However, this is usually done only when the marriage is planned for the near future. This is because a pre-nuptial agreement only takes effect when the couple gets married. This means if you separate before you get married, then the terms of your pre-nuptial agreement will not apply to your separation.

If you do not plan on getting married in the near future, you may want to consider a cohabitation agreement instead. This can govern your relationship and/or separation before you get married. For more information, see the Cohabitation Agreements Information Page.

You can always sign a pre-nuptial agreement if you plan to marry in the future.

Marriage agreements

Any married couple can create a marriage agreement. It does not matter how long you’ve been married or whether you were married in Canada. As long as your marriage is considered valid in Canada, you can sign a marriage contract. For more information about the requirements of a valid marriage in Canada, see the Getting Married Information Page.

Why sign a pre-nuptial or marriage agreement?

There are many reasons people choose to enter into such an agreement. Some of the common reasons are described below.

Not all marriages last forever

Right now, you may be in a stable and healthy relationship and you can’t see things ever going wrong. In fact, about half of all marriages end in divorce. It may be worthwhile to be cautious. A pre-nuptial or marriage agreement can protect your interests.

Avoid future conflict

Having a pre-nuptial or marriage agreement that deals with what will happen if you separate could help reduce or avoid future conflicts. The decisions will have already been made. At the moment, you still like each other. It is often much easier to come to an agreement now than it will be if you split up and no longer get along. Preparing the agreement is also a good opportunity for each of you to see what the other expects from the marriage.

Extra protection

When a married couple separates, there are written laws (also called “statutes”) that set the “default” rules for this process. These laws include the Family Law Act, the Divorce Act, and the Matrimonial Property Act. Married spouses have a certain amount of protection through these statutes. However, a pre-nuptial or marriage agreement allows the parties to “customize” the default rules set out in the statutes (to a certain extent). This means that they can make their own rules that fit better with their specific situation.

An agreement is also a good opportunity for the parties to state their intentions if they were to separate. For example: both parties may intend to be self-sufficient if the marriage was ever to end. Therefore, they would not require spousal support. In many cases, the intention of the parties can be a factor the Court will consider about an agreement if the marriage ends and the parties end up in court.

More information

For more information about why a pre-nuptial or marriage agreement might be a good idea, as well as what issues you might want it to deal with, see the following resources.

Web Marriage Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more hereSee “When a marriage agreement is a good idea.” Note: this website deals with the law in British Columbia. The Family Law Act in BC is not the same as the Family Law Act in Alberta. Do not follow the legal requirements stated on this website; simply use the considerations for whether a marriage agreement is appropriate for guidance.

Web Legal matters and finances for couples
Government of Canada
English

Web Questions juridiques pour les couples
Government of Canada
French

Web 4 Reasons Why You Should Have a Prenup
Behrendt Professional Corporation
English
This is a private source. Learn more here.

Video Prenups: What are they? Why get one?
AdviceScene (via YouTube)
English
This is a private source. Learn more here. Start at 17:00.

Web What Are Post-Nuptial Agreements and Why You Might Need One?
Kahane Law Office
English
This is a private source. Learn more here.

Web Prenuptial Agreement Lawyers
Kahane Law Office
English
This is a private source. Learn more here.

Web 10 Reasons you Need a Pre-Nuptial Agreement
McGurk Fraese Family Lawyers
English
This is a private source. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Prenuptial Agreements: Fear and Loathing by both Counsel and Clients
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Does our cohabitation agreement become a pre-nuptial agreement once we get married?

A cohabitation agreement is made by people who are not yet thinking about getting married. However, couples with a cohabitation agreement may decide to get married later on.

The law treats married and unmarried couples quite differently. So, an agreement that is valid before you get married will not necessarily be valid after you get married.

For example, the property rights of married couples are very different from the property rights of unmarried couples. For married couples, the division of property is governed by its own law, called the Matrimonial Property Act. This law has certain requirements for any property-related domestic contracts. For example: independent legal advice is required rather than optional. Before you are married, you may be able to create a valid cohabitation agreement dealing with property without independent legal advice. But after you are married, an agreement like this will not be valid.

For an existing cohabitation agreement to become a valid pre-nuptial agreement once you are married, the agreement must have the necessary requirements of both a cohabitation agreement and a pre-nuptial agreement. Then it will be legally able to govern your relationship both before and after you are married.

If you want your existing cohabitation agreement to continue through the marriage

For a cohabitation agreement to be a valid agreement after you are married, there are 2 requirements:

  1. your cohabitation agreement must specifically state that it will continue through your marriage if you later marry; and
  2. for dealing with property, it must meet the requirements for domestic contracts under the Matrimonial Property Act.

The Matrimonial Property Act has 3 requirements.

  1. The agreement must be in writing.
  2. The agreement must have been freely agreed to.
  3. Each spouse must have had independent legal advice and signed the agreement in front of their lawyer. This means that each must have their own lawyer. Each lawyer will then give a “Certificate of Independent Legal Advice.
Be Aware

Different provinces have different rules about domestic contracts. If you know that you will be moving to another province, be sure to consider that province’s rules. That way, you can plan for your agreement to be enforceable in your new province. For information about who can help with this, see the Solving Legal Problems & Out-of-Province Issues Information Page.

If you don’t want your existing cohabitation agreement to continue through the marriage

If you want your cohabitation agreement to end when you get married, you can either:

  • say that right in the agreement itself; or
  • not say anything at all.

If you decide to get married and let your cohabitation agreement come to an end, you have 2 options.

What happens if you don’t have a pre-nuptial agreement or a marriage agreement

If you separate from your spouse after being married for some time, you will have certain rights under the law. You will have these rights even if you don’t have an agreement. They come from written laws called “statutes.” These rights can include things like:

  • spousal support;
  • child support;
  • the exclusive possession of the matrimonial home; and
  • a fair share of the matrimonial property.
     

Compared to unmarried partners, married spouses have many more rights under the law. However, these rights are the same for all married couples. They are not “customized” to anyone’s circumstances. This “standard” set of rights may or may not be exactly what you and your spouse want. Also, the rights you get under these statutes are quite basic. You may want more protection.

For example: you have a piece of antique furniture that has been passed down for generations in your family. You and your spouse have been using it for years in your home. You may want to keep this specific piece of property in your family if you and your spouse were to separate. A pre-nuptial or marriage agreement may help you achieve this by settling it ahead of time. If you didn’t have an agreement, this piece of antique furniture could be considered part of the property that needs to be divided between you. This doesn’t mean you won’t be able to keep it in the end. But without a prior agreement, you may have to spend more time and effort to keep it.

Having a pre-nuptial or marriage agreement allows you to “customize” your rights and responsibilities. This means you can make them fit your situation. However, not all rights and responsibilities can be “contracted out of” in an agreement. For example: a clause that says that no child support will be paid will not be upheld. This is because child support is the right of the child, not the parents.

For more information about what happens when married spouses separate without a pre-nuptial or marriage agreement, see the following Information Pages. Note that some of these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the section above called “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?”

Before you start: Know your rights

Sometimes, people think (or are told) that learning about their legal rights and options is a bad thing. They believe that this might lead them to fight and “go to court” one day. This is not true. Writing your own pre-nuptial or marriage agreement does not mean that you can ignore the law.

Understanding your rights under the law may help you:

  • make informed decisions about the terms of the agreement; and
  • realize what you may be giving up by signing the agreement.
     

Sometimes people only find out afterward what their rights and options were under the law. This can lead to resentment and attempts at “undoing” the terms of the agreement. Sometimes one or more of the parties does not understand their rights when they make an agreement. In this case, the agreement could be “set aside” or “struck down” by a court.

Thus, any agreement will have more of a chance of success if everyone involved:

  • knows their rights and options; and
  • makes all of their choices with these rights and options in mind.
     

Also, under the law, there are things you cannot do in a pre-nuptial or marriage agreement. For example, child support is the right of the child, not the parents. You cannot contract out of child support entirely in an agreement. This will not be allowed by the Court if you and your partner later separate. You would have spent time and money creating an agreement that may not be allowed under the law. It is better to know the law from the beginning. This way, you can make sure that whatever you put in your agreement will be enforceable.

Learn the relevant law

Whether you are hiring a lawyer to draft an agreement for you or doing it yourself, you will want to educate yourself about the goal and process of creating a pre-nuptial or marriage agreement, as well as the relevant laws. Take the time to learn about the legal topics that may come up if you separate from your spouse. Although it is difficult to foresee your circumstances in the future, it is very important to know your rights under the law before entering into any contracts.

Be aware that this will take some time—law is not easy. Do not try to do it all in one sitting. See the Information Pages below about common legal issues that come up when married spouses separate. Note that some of these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section above.

In the case where two parties created a pre-nuptial agreement but separated before getting married, then the law governing unmarried people will apply—remember, a pre-nuptial agreement only comes into force once the parties marry. See the Information Pages below about common legal issues that come up when unmarried partners separate.

Be Aware

The Divorce Act and the Matrimonial Property Act would not apply to you if your relationship later breaks down before you are married.

For a complete list of other Information Pages about family legal issues, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Before you start: Contract law basics

If you want to make an agreement (also called a "contract) that is legally sound, there are some very important things that you must know. See the following resource for an overview, and read the rest of this section for more detail.

Webinar Conflict, Court, or Another Way? Different Ways of Resolving a Family Dispute
Your Legal Rights
English
This resource is from outside Alberta. Learn more here. Start at 24:25.

What is a contract?

A contract is an agreement between two or more people that can be enforced by the courts. The people who take part in this agreement are called “parties.” A contract is different from a casual agreement or promise because if one party to the contract does not hold up “their end of the deal,” he or she can be sued by the other party in court. As long as a contract is valid, the parties have legal protection—see the rest of this section for more information about what makes a contract “valid.”

The purpose of having a contract is to settle the parties’ rights and obligations in a certain way so the parties don’t have to worry about what might happen in the future. Once a contract has been created, as long as the contract is a valid one, it cannot be changed unless all the parties to the contract agree to the change.

For more information, see the following resource.

Presentation Canadian Law: Elements of a Contract
Northlands Parkway Collegiate
English

Void and voidable contracts

A contract can be “void” or “voidable” if:

  • it does not have all the necessary legal requirements, or
  • the process of creating the contract was unfair or has some other flaws.

A void contract is a contract that was never legal, such as a contract to do an impossible or illegal act. Because the contract was never legal, it “never existed” under the law. If a contract is void, you will not be able to enforce it in court.

A voidable contract, on the other hand, is a contract with a legal flaw, but the contract is still recognized as a valid contract until someone brings that flaw to the attention of a court and the court decides that the contract was not valid after all, in which case it becomes a void contract.

The main difference between a void contract and a voidable contract is that a void contract cannot be carried out under the law, while a voidable contract can be carried out unless one of the parties disputes the contract.

For example:

  • a contract that was signed by an adult with a severe head injury who has lost the capacity to make his or her own decisions is void;
  • a contract that was signed by a 17-year old a few days before his or her 18th birthday is voidable.

To see examples about legal flaws that can make a contract void or voidable, see the followingresource and the rest of this section.

Web What Are the Differences Between a Void Contract and a Voidable Contract?
LegalMatch
English
This resource is from a private source outside Alberta. Learn more here.

Things you must always have in any agreement

In order for an agreement to be legally sound, there are several things that are required. They include the following.

Be Aware

The concepts discussed below apply to all agreements, however, some agreements will have more requirements than others. There are additional legal requirements when parties enter into a pre-nuptial or marriage agreement, see the “Additional contract requirements for pre-nuptial and marriage agreements” section below for these additional requirements.

Complete disclosure

“Complete disclosure” means that all parties involved in the agreement must give each other full and accurate information, including financial information. You will want complete disclosure from the other party so that you know enough to decide whether a deal is fair. The other party will want the same.

The parties cannot lie about the facts on which the agreement is based. Fair and lasting agreements are based on being honest. If it is later shown that someone lied, or one party misled the other about relevant information, the agreement can be set aside. A full and thorough disclosure is the best way to prevent your agreement from being set aside.

Consent

Entering into an agreement is a voluntary thing. No one should ever be forced or tricked into signing a contract. If it is shown that a person did not properly consent to the agreement, a court can cancel the agreement (this is also called “setting aside” the agreement).

Legally, a person under the age of 18 (a “minor”) cannot give consent. This means that if a minor agrees to something, you may not be able to “hold” him or her to it. This is why a contract entered into by a minor is voidable—see the “Void and voidable contracts” heading above.

Capacity

“Capacity” means the parties who make the agreement must have the legal authority to make decisions for themselves.

This means that a person signing an agreement must understand both:

  • what they are agreeing to (everything in it!); and
  • what could happen if they do or do not sign the agreement.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

When making an agreement, you need to be sure that all the parties involved have capacity while making the decisions and when they sign the agreement.

For more general information about capacity, see the following resources.


Web Understanding Legal Capacity In Alberta
Kahane Law Office
English
This is a private source. Learn more here.

Video Understanding Legal (Mental) Capacity
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

A person under the age of 18 (a “minor”) is generally presumed to not have capacity to enter into contracts. Any contract that is not in a minor’s best interest is void. Contracts that are not harmful to a minor are voidable unless the contract was for the “necessaries of life” (which includes things like food and shelter ) or if the minor has already benefitted from the contract.

Therefore, if a minor enters into an agreement, that agreement will generally be voidable. This is true even if both parties carried out the contract and treated it as valid.

Following the law that governs the issue

Different laws can do different things. Some laws state what must always be the case. Some laws state what the “default” is (that is, what would happen if there were no agreement), and the parties can “agree otherwise” or “contract out” of the default position.

You must be sure that your pre-nuptial or marriage agreement follows the laws that dictate what must always be.

For example: The law states that when parents separate, their children are entitled to support. The law also sets the default amount of support to be paid (this is called the “table” amount). You cannot just contract out of this. In other words, you cannot make an agreement that says neither party will ever have to pay child support to the other. The only time you may be able to pay less than the table amount is if there are unusual circumstances, which will have to be proven to the Court.

When you are making an agreement, you must know what laws govern your issues. A few family law examples include:

  • If the agreement deals with child support, the court may set aside the agreement if there is not enough support provided for the children.
  • If the agreement deals with parenting arrangements (such as guardianship, contact with the child, or parenting time), the agreement must be in the child’s best interests. And those arrangements do not have to be followed: when the parents separate, the court can always look at, and decide, the “best interests” of the child, and set aside the parents’ agreement if it feels that it is not in the best interests of the child.

It also very important to understand that the laws that govern family issues are different in every province. For example, in Ontario, the law is clear that issues such as where the children will live can only be decided if and when you separate: parties cannot address these issues in an agreement before they separate. If you think that you might move to another province, you may wish to look at the laws for that province before coming to an agreement, since you will want to ensure that your agreement will be valid in that province. One way of having some certainty is to have a “law that governs” clause—see the “Legal details” heading below for more information about that.

Another example of the difference between the laws in different provinces is when dealing with fairness and unconscionability. “Unconscionability” is a term used to describe situations of extreme unfairness: in other words, it would be against our conscience to let this thing happen. Fairness and unconscionability have not yet been factors to overturn a domestic contract in Alberta, although they may become relevant in the future. In Alberta, as long as the parties to a contract are fully informed of their legal rights, get full disclosure about the other party’s assets, and get independent legal advice, the agreement is generally upheld in court.

But this isn’t the case in British Columbia. In British Columbia, the Court has struck down family law agreements because the agreement was too unfair. Given that the laws are different in different provinces, if you think you may move to another province, consider looking at the laws of that province to ensure your agreement will be valid in that province.

You may also want to take a look at the Solving Legal Problems & Out-of-Province Issues Information Page if you think you might be moving to a different province in the future or if you are moving from a different province to Alberta.

id='Tip'Many of the Information Pages on LegalAve have a section called “The laws that may apply to you.” If you are not sure what laws govern your legal issues, that is a good place to start. To find Information Pages about your issue, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Things that are always a good idea to have in any agreement

Although the following things are not mandatory for most agreements, having them might make it easier to enforce your agreement in the future.

Be Aware

The concepts discussed below are “good things to have” for all agreements, however, for some agreements, these things are required rather than optional. For example, in a pre-nuptial or marriage agreement, independent legal advice and having a written agreement are requirements rather than recommended. See the “Additional contract requirements for pre-nuptial and marriage agreements” section below for more information about the legal requirements of a pre-nuptial or marriage agreement beyond the basics.

Independent legal advice

This means a person consults a lawyer about a contract he or she wants to sign before signing the contract. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities.

Getting independent legal advice can be helpful because a lawyer will catch any topics or issues that you may have missed or hadn’t thought about. Lawyers can also clarify any unclear terms or conditions in your agreement. Also, if one or both parties did not get independent legal advice before signing the agreement, a court may decide that the parties did not truly understand the contract when they signed it, and may “set aside” the agreement as a result.

A written agreement

In theory, a verbal contract can be legally enforceable. However, it is always better to put any agreements in writing, whether typed or handwritten. This is because, when the agreement is not in writing, it can be impossible to prove what exactly was agreed to.

For example, maybe you and your partner agree that if you later separate, your partner will give you $500 a month for partner support. If you separate and he or she decides not to pay the $500, it could be very difficult for you to prove the terms of your verbal agreement in court because your partner could simply deny it.

Also, with a verbal agreement, both you and the other party may have different understandings of what the verbal agreement means. If the agreement is written down clearly, it can prevent misunderstandings in the future.

Having witnesses present when you sign the agreement

It is a good idea to each have a witness to your signature when you sign your agreement. Your witness watches you sign the agreement, and then he or she signs the agreement to “prove” that he or she watched you sign. If the voluntariness of the parties are ever called into question, having a witness watch you sign an agreement may help your case.

The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

Clarity

Make sure it is very clear what you are agreeing to. Clarity helps prevent misunderstandings later. Also, there is no need for “legalese”—plain, clear language works best. You may want to have a friend read the document to see if they can understand it without any help from you.

Things you cannot ever have in any agreement

To make sure that your agreement is legally sound, there are several things that must never be present. They include the following.

Undue influence

“Undue influence” is when one person has power over another person, and uses that power to benefit himself or herself in the agreement. Undue influence affects the free will and judgment of another person, and may include: advice, persuasion, suggestions, flattery, and deception. If a judge finds that there was undue influence when the agreement was made, the agreement can be set aside.

Duress

“Duress” means that one person directly or indirectly threatened the other.

A direct threat is usually very clear: “sign this or I will make you pay” or a hand gesture that shows throat-cutting. An indirect threat is less clear, and may only be understood as a threat by the people involved. For example: “Have a safe ride home.” Such a statement does not, on its own, look very threatening. However, it would be threatening if the person who is speaking had previously threatened to disable part of the other person’s car, or if the statement were combined with a threatening expression or eye contact that only the person involved would see.

If a judge finds that a party was under duress when the agreement was made, the agreement can be set aside.

Terms that are against the law or against “public policy”

You cannot agree to anything that is against the law or “public policy.”

Something that is against the law is easy to understand. For example: agreeing to say that you have been separated for one year so that you can get a divorce, when in fact you have not been separated for one year. This would be against the law.

Something that is against public policy is slightly different than something that is outright illegal. When something is against public policy, it is inconsistent with the law (that is, it does not follow the spirit and purpose of the law) and the general social and moral values of our society, even though it may not actually “break” any laws.

Some conditions in your pre-nuptial/marriage agreement may be set aside if they are against public policy. For example, if you agreed to pay spousal support to your former spouse on the condition that he or she does not remarry for the following 15 years after your separation, this condition would be struck down in court as against “public policy.” This concept extends beyond support issues and can apply to any situation where one party holds the other party “hostage” with a condition that is not generally acceptable in our society.

Legal details

Although contracts can vary in length, style, and content, it is important to be aware of certain details, or “legal technicalities,” that can help avoid potential problems with enforcing the contract in the future.

Here are some of the most important “legal technicalities” you may want to include in your agreement:

  • the exact names of all of the parties, and the names and birth dates of all the children involved, if there are any.
  • the date the agreement takes effect: agreements are binding from the moment they are signed by all parties, unless the agreement says something different.
  • recitals: these are sometimes called “whereas” clauses, and they give a clear statement about what the contract is intended to govern, as well as some background information (for example: “This agreement is intended to govern property division upon separation”).
  • mutual releases, if you decide you want them. This is where the parties limit each other’s claims against each other to what is included in the agreement (in other words, they cannot later ask for more than was agreed to in the agreement).
  • acknowledgements: this is where the parties state that they met the legal requirements. For example: each party read and fully understood the agreement, each party is voluntarily signing the agreement, and each party has received independent legal advice (or, if legal advice is not required for the agreement, each party knows that he or she can get legal advice but is choosing not to get such advice).
  • a “law that governs” clause: a “law that governs” clause will lay out which province’s or country’s laws will decide any future issues that might come up. This can be important if one of the parties lives in, or will move to, another province or country.
  • a severability clause: this clause states that each term of a contract is independent from the other terms of the contract. This way, if part of a contract is struck down in court, the rest of the contract would not automatically be considered invalid.

For more information about how contracts work, see the following resource.

PDF Contract Law in Alberta
Centre for Public Legal Education Alberta
English
This resource is intended for teaching young students about consumer contracts, but much of the information applies to domestic contracts as well.

The following resources are not available online. The links below will give you a preview of each article, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Can You Bullet Proof a Settlement Agreement? (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Pitfalls of Matrimonial Agreements (article included in "Family Law Boot Camp")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Additional contract requirements for pre-nuptial and marriage agreements

In addition to the general contract requirements listed above, pre-nuptial and marriage agreements have a few extra requirements (unless the agreement does not deal with property division). 

These extra requirements are stated in the Matrimonial Property Act, which is the law in Alberta that deals with property division for married spouses. Any pre-nuptial or marriage agreement that deals with property division must meet these extra requirements to be valid and enforceable when a married couple separates.

The Matrimonial Property Act requirements are:

  • the agreement must be in writing,
  • the agreement must have been freely agreed to, and
  • each spouse must have had independent legal advice (that is, each with their own lawyer) and signed the agreement in front of their lawyer. Each lawyer will then give a “Certificate of Independent Legal Advice.” If you do not go to a lawyer, your agreement about the property will not be binding and the other party could ask the Court to ignore the agreement when dividing up the property.
Be Aware

Different provinces have different rules about matrimonial property. If you know that you will be moving to another province, be sure to consider that province’s rules to ensure that your agreement will be enforceable in your new province.

Common topics to include in a pre-nuptial or marriage agreement

Every relationship is unique. Therefore, what is included in a pre-nuptial or marriage agreement for a specific couple will depend on the couple and their particular situation.

Although you can technically put almost anything in a pre-nuptial or marriage agreement, some things won’t be “binding.” This means that although the parties may have agreed on a matter, the Court will have the final say. If the Court is not satisfied with the terms of the agreement on certain matters, it has the power to change it. Keep reading this section for more information about what may or may not be “binding” in a pre-nuptial or marriage agreement.

Tip

A pre-nuptial or marriage agreement, like any other contract, has legal force. This means that the other party can take you to court if you don’t hold up “your end of the deal.” So, make sure you only agree to terms that you are comfortable with. Don’t agree to something just to make the other party happy.

Issues during the relationship

A pre-nuptial or marriage agreement can have terms that deal with rights and responsibilities of the parties during the relationship, such as who pays the electricity bill and who buys the groceries.

However, terms like these are often difficult to enforce. For example, you and your spouse can agree to each pay for half of the electricity bill each month in your agreement. But what happens if one of you loses his or her job? It may be hard to account for all of the possible circumstances that could arise in your daily lives.

Separation issues

In many relationships, the primary goal of creating a pre-nuptial or marriage agreement is to give the parties some certainty about what will happen if the marriage ends. Issues related to separation can generally be separated into 3 categories:

  1. issues relating to children,
  2. spousal support, and
  3. property division.

Property division is usually the easiest to deal with in a pre-nuptial or marriage agreement because you know what property you own when you sign the agreement and you can decide how you and the other party want to divide the property and debt you get during the relationship. It is harder to deal with unknown circumstances in the future that will affect spousal support and issues concerning children.

Issues relating to children

You may not be thinking about it right now, but you may one day decide to have children. Or perhaps you already have children from either your current relationship or previous relationships. When making arrangements for children in any family law agreement, the most important thing to remember is that any decision regarding your children (such as guardianship, contact with the child, and child support) must be made in their best interest.

In addition, when dealing with issues about children, a court can always have the final say no matter what the parties involved have agreed upon. This power of the court comes from a legal concept called the “parens patriae” jurisdiction. This is a Latin term that means “parent of the nation.” It refers to the power of the court to intervene against a parent or guardian, and to act as the parent of any child in need of aid or protection. In making decisions that will affect a child, the Court will only consider what is in the “best interests of the child.” So, no matter what the parents have agreed to in their pre-nuptial or marriage agreement about their children, the Court can change the arrangement if it believes that the arrangement is not in the best interests of the children.

Typically, this is only an issue when parents try to contract out of the minimum requirements of the law. For example, if you and the other party agreed that neither party will pay child support to the other party if you were to separate, the Court will not accept this arrangement because it is not in the best interests of the child to not receive child support. Also, child support is the right of the child, not the parents. But if you and the other party agreed on an amount of child support that is higher than what the law requires, the Court is likely to uphold the arrangement if you are ever in court.

Basically, parents can make arrangements for their children in a pre-nuptial or marriage agreement, but, because of the “parens patriae” jurisdiction those agreements will never really be binding. As such, you may want to use language that shows your intentions and the reason for those intentions. For example, the parties may say that they intend for the mother of the children to make all health care decisions regarding the children because she is a doctor. This may be a factor the Court will consider when the parties separate.

Be Aware

Not all provinces allow parents to contract about child-related issues in a domestic contract. For example, in Ontario, parents can only enter into an agreement about parenting time, custody, or access after they have separated. If you think that you might be moving to another province, be sure to consider that province’s rules to ensure that your agreement will be enforceable in your new province.

For more information about issues related to children for married parents, see the following Information Pages. Note that these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section above.

Sometimes, a person may want to limit his or her role as a parent in the pre-nuptial or marriage agreement. This often happens with step-parents. The step-parent may want to ensure that he or she is not responsible for the children if the couple were to separate. Again, a party (in this case the step-parent) can only show his or her intention in a pre-nuptial or marriage agreement, which is a factor the Court will consider, but it will not be binding on the Court. The Court will assess whether the individual has stood “in the place of a parent” even though he or she isn’t a biological parent, and if so, he or she will have all the rights and obligations of a parent.

For more information about “standing in the place of a parent,” see the following Information Pages. Note that these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section above.

Spousal support

Once you are married, you may have a claim for spousal support. However, this does not necessarily mean you will be entitled to spousal support. Whether a spouse is entitled to spousal support will depend on certain factors. When married spouses separate and there is no pre-nuptial or marriage agreement between the spouses, the Court will look at these factors to figure out whether one spouse should support the other.

You can deal with the issue of spousal support in a pre-nuptial or marriage agreement. Courts will generally respect the intentions of the parties regarding spousal support if the parties had thought of the circumstances at the end of relationship when they signed the agreement. However, although you can try to give up (“waive”) your right to spousal support in your pre-nuptial or marriage agreement (that is, you could try to “contract out” of your right to spousal support), you can never be absolutely sure that it will be binding.

The reality is, if one spouse is incapable of supporting himself or herself after separating from the other spouse, and if the Court can find a valid reason to set aside the spousal support clause, the Court may require the other spouse to bear this burden rather than have the taxpayers bear the burden. This is more likely to happen in longer marriages where one spouse sacrificed his or her career to care for the children.

Although this waiver may not be binding, the Court will still consider the intention to waive spousal support at the time the parties signed the pre-nuptial or marriage agreement if one of the parties applies for spousal support after separation.

For more information, see the Spousal Support under the Divorce Act and/or the Partner Support under the Family Law Act Information Pages.

Property division

In Alberta, the division of property owned by married spouses is governed by the Matrimonial Property Act. The Matrimonial Property Act sets out rules for how different categories of property are to be divided when a marriage breaks down. Its purpose is to make sure that property is divided fairly between the spouses when they separate.

Under the Matrimonial Property Act, some things are not divisible when spouses separate, some things are to be divided fairly (but not necessarily equally), and some things are to be divided equally unless there is evidence to show that they shouldn’t be divided equally. For more information about how matrimonial property is divided when there is no pre-nuptial or marriage agreement, see the Property Division for Married Spouses Information Page.

A pre-nuptial or marriage agreement allows the parties to “customize” the rules set out in the Matrimonial Property Act.

For example: You have a piece of antique furniture that has been passed down for generations in your family. You and your spouse have been using it for years in your home. You may want to keep this specific piece of property in your family if you and your spouse were to separate. A pre-nuptial or marriage agreement may help you achieve this by settling it ahead of time. If you didn’t have an agreement, this piece of antique furniture could be considered part of your overall matrimonial property, which would be presumed to be divided equally between you and your spouse. This doesn’t mean you won’t be able to keep it in the end, but without a prior agreement, you may have to spend more time and effort to keep it.

Another example: In a pre-nuptial or marriage agreement, the parties can agree on how the property is to be valued. The parties can also “lock-in” the value of what they bring into the relationship at the time of the agreement, so that this value will not be included in the calculations of dividing shared property if they separate.

Be Aware

Your agreement will not be binding on third parties. For example: your spouse may have agreed to pay his or her share of a debt that both of you owe. However, if he or she does not follow the agreement, the creditor could still make you pay all of it. For more information about this, see the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

Courts tend to respect the intentions of the people involved when it comes to property division. As a result, it is important to really understand what you are agreeing to. Property division is a complicated area. To learn more about it, see the Property Division for Married Spouses Information Page.

Other issues to consider in a pre-nuptial or marriage agreement: Planning for illness and death, pets, and solving future disagreements

Other than the common issues discussed above, there are some other things you may also want to consider when making a pre-nuptial or marriage agreement.

Issues about death: 

You also need to write a Will

Many people assume that if they die without a Will (also called dying “intestate”), their spouse will automatically get everything. This is not necessarily the case.

To plan for what will happen to your things when you die, you will want to write a Will. If you are married or live in a marriage-like relationship, it is important to create this document, and to review it as your life changes.

Be Aware

The legal requirements for making a Will are different than the legal requirements for a pre-nuptial or marriage agreement, and they are two separate documents. See the Planning for Death Information Page for more information about writing a Will.

Designation of Beneficiary forms

In addition, there are certain types of things that do not pass through the Will. Instead, they go directly to a specific person. This includes assets and policies that are left to someone (called the “beneficiary”) because that person is named on a “Designation of Beneficiary” form.

Some examples include:

  • Life insurance: When you purchase life insurance, you fill out a Designation of Beneficiary form indicating who will get the money (the “benefit”) when you die.
  • Pension plans: If you have a “pension partner” (a spouse or non-married partner who meets a specific definition in your pension plan rules), he or she will get the death benefits. However, if you have no pension partner (for example: your partner who is not yet your Adult Interdependent Partner), the death benefit goes to the person that you named on the Designation of Beneficiary form.
  • Registered Retirement Savings Plans (RRSPs): When you set up an RRSP, you are asked to sign a Designation of Beneficiary form. The person you name in that document gets the RRSP when you die.
  • Tax-free savings accounts (TFSAs): When you open a TFSA, you will also be asked to complete a Designation of Beneficiary form. The person you name gets the balance of the account when you die.

You may or may not want your spouse to be the beneficiary on a Designation of Beneficiary form. This is something to think about when you get married, and to reconsider as your marriage grows.

The effect of death on a pre-nuptial or marriage agreement

Pre-nuptial and marriage agreements should include clauses that address what will happen if one of the spouses dies. This will help make sure that each spouse would get what the other intended.

Also, the terms of the agreement are very important if the parties had separated and one spouse is still paying support at the time of death. This is because child support and spousal support payments usually end if the payor dies, unless the agreement says that the payments are to continue after death. For more information, see the following Information Pages.

For more information about how death impacts a domestic contract, see the following resource.

Web Entitlement to Support Despite Prenuptial Agreement – The Butts Case
Wagner Sidlofsky LLP
English
This resource is from a private source outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Impact on Death (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Issues about illness: Substitute decision-making

Many married people assume that if they become incapable of making their own decisions, their spouse can just take over. They believe that medical staff, banks, and other service providers would simply take direction from their spouse (this is called “substitute decision-making”). As a result of this belief, they do not complete the legal paperwork required to give their spouse this authority. Or, people might think that simply adding a clause about substitute decision-making in a pre-nuptial or marriage agreement will take care of this matter.

These beliefs are wrong. Alberta law does not have any such automatic default position. As a result of these incorrect assumptions, many people do not complete the legal paperwork required to give their spouse this authority, which can cause a lot of problems later on. It is important to remember that pre-nuptial and marriage agreements and documents about substitute decision-making are separate legal documents with different legal requirements.

To plan for a time when you will no longer be able make decisions for yourself, there are two different legal documents that are required:

  1. a Power of Attorney, which is for financial decisions; and
  2. a Personal Directive, which is for all other decisions.

For more information about substitute decision-making, see the Planning for Illness Information Page.

Pets

People who are married or plan to be married in the near future will often decide to have pets together. Some couples will even use pets as a “trial run” before deciding whether or not to have children. For many people, pets are members of their family. In fact, often people use the term “custody” when discussing who will take care of the pets after a marriage breaks down. 

Legally speaking, however, pets are not family members, but property. In many ways, it does not make sense to treat pets as property. For example, they cannot be very easily “divided.” Also, the spouses do not want to sell them in order to divide the proceeds. However, pets are still technically property. 

As a result, if a married couple separates, courts sometimes try to value the pets and assign that value to one spouse or the other. That said, pets are not treated in quite the same way as other property. Judges have even been known to grant orders that two former spouses share the care of their pets.

Given the unique nature of pets, it can be better for everyone if the issues can be resolved by agreement. A pre-nuptial or marriage agreement is a great opportunity to settle issues relating to pets, including who the pets will live with, who will pay for their veterinary bills, and more.

To learn more about how pets are dealt with when a married couple separates, see the “Pets” section of the Property Division for Married Spouses Information Page.

Solving future disagreements (also called “dispute resolution”)

Something you may want to include in your pre-nuptial or marriage agreement is how you and the other party want to handle disagreements (or “disputes”) in your relationship. For example, you can agree to try alternative dispute resolution (such as mediation) before starting any court action. For more information about this, see the Alternative Dispute Resolution Information Page.

More information

For more information about things to consider when making a pre-nuptial or marriage agreement, such as what to include and what not to include, see the following resources. Be aware that most of these resources are not from Alberta, so purely legal information about provincial laws do not apply to Albertans, but there is much other good information.


PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here. See p. 5-9.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Making an agreement when you live together
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

Web Prenuptial Agreement Lawyers
Kahane Law Office
English
This is a private source. Learn more here.

Web Family Law: Domestic Contracts
Public Legal Education and Information Service of New Brunswick
English
This resource is from outside Alberta. Learn more here.

Web Droit de la famille : Contrats domestiques
Public Legal Education and Information Service of New Brunswick
French
This resource is from outside Alberta. Learn more here.

Web Marriage Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here.

Web Safeguarding Enforceability Of Domestic Contracts
Kirk Montoute LLP
English
This is a private source and can be a challenge to read. Learn more here.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 15.

Book Negotiating Prenuptial Agreements (article included in "38th Annual Banff Refresher Course: Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Once you are married: Dower rights, premarital debts, and pensions

There are certain issues that arise only when you are married (that is, they do not apply to couples who are living together but are not married). These issues may not concern every married couple, but it may be helpful for married couples or couples who are planning to be married to be aware of these issues so you can plan ahead.

Dower rights

The term “dower rights” refers to specific rights to the family home that are given to both spouses, even if only one spouse owns the property. These rights come from Alberta’s Dower Act, and include the following.

  • The family home may not be sold, given away, or rented for a period of more than 3 years without the consent of both spouses, while both spouses are living.
  • If only one spouse owns the family home (in other words, the land title is in the name of only one spouse), and that spouse dies, the surviving spouse has the right to live in the home for the rest of his or her life (and he or she may not sell it unless the deceased spouse left the house to him or her in a Will). If the deceased spouse left the house to the surviving spouse in a Will, it would belong to that surviving spouse.
  • If more than one home was owned by the deceased spouse and were lived in by both of the spouses during the marriage, the surviving spouse would have to choose one house for which to claim the dower right (that is, the right to live in one house for the rest of his or her life).
  • If the property in which you have dower rights was transferred by your spouse to someone else without a court order or your consent, you could sue him or her for damages.
Be Aware

Dower rights do not apply to a property that is co-owned by one of the spouses and another person(s). For example, if Alex and Taylor are married and live in a house owned by Taylor and Taylor’s sister, then Alex would not have any dower rights to this house.

If you separate or divorce, part of the settlement of matrimonial property will likely include the release of your dower rights. Dower rights can also be lost if the Court allows your spouse to sell or give away the family home without your consent. The Court would only make such an order if it was considered fair and reasonable in the circumstances.

Dower rights cannot be “contracted out” of in a pre-nuptial or marriage agreement. It is the right that is intended to protect the spouse who is not the legal owner of the matrimonial property.

For more information on dower rights, see the following resources.

Audio/Web Rights to your home under the Dower Act
Calgary Legal Guidance
English

Web Matrimonial Property
Centre for Public Legal Education Alberta
English
See “Dower Rights.”

Web Real Estate – General Information FAQs
Centre for Public Legal Education Alberta
English

Web A Quick Review of Dower Rights in Alberta
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Dower
The Canadian Encyclopedia
English

Pre-marital debt

Property is not just assets: property also includes debts.

When people think of their matrimonial debt, they usually think of the debts that they acquired during the marriage. However, depending on the circumstances, a debt that was acquired before the date of marriage (“pre-marital debt”) could also be considered matrimonial property.

In Alberta, there is no written law that says how a court should divide the matrimonial property between the spouses when there was pre-marital debt. In cases where there has been pre-marital debt, courts have looked at them on a “case-by-case” basis. Some courts have said that the amount of pre-marital debt that was paid off during the marriage could be subtracted from the current spousal debt, so that neither spouse is burdened with the other’s pre-marital debt after separating. However, other courts have not taken this view.

Because of this uncertainty about how pre-marital debt may be dealt with in court, this may be something you want to address in a pre-nuptial or marriage agreement. This may be especially helpful if one spouse has a lot of pre-marital debt while the other has very little or no pre-marital debt.

For more information about pre-marital debt and how it is treated in matrimonial property division, see the “Debts” section of the Property Division for Married Spouses Information Page.

Pensions

When you are completing a pre-nuptial or marriage agreement, there may be questions about pensions that you want to resolve, such as: What happens to the money if the person who is contributing to the pension dies? What happens to the money if you separate?

In general, if the person contributing to the pension plan dies, his or her spouse will receive death benefits. Similarly, if the spouses separate, pensions are considered to be matrimonial property and are subject to division. However, it may only be part of the pension(s) that are divisible—it depends on how long the spouses were together.

This may be something you want to address in a pre-nuptial or marriage agreement. For example, you may not wish to split your pension(s) if you separate, or you may want your death benefits to go to a beneficiary other than your spouse. Exactly what can be done in a pre-nuptial or marriage agreement will depend on both the individual pension plans(s) and the law(s) that govern those pension plans.

This is a very complicated area and each pension plan has its own rules. Check your pension plans. In addition, you will need to check the specific law that governs your plans (it may be provincial law or federal law depending on the pension plan) to see the exact steps you and your partner need to take to try to keep your pensions separate. You may also need to look into any case law that has addressed your particular pension plan.

A lawyer who is familiar with pension plans can be very helpful in writing this part of your pre-nuptial or marriage agreement. For more information, see the Working with a Lawyer Information Page.

For more information about pensions and how they can be divided when married spouses separate without a pre-nuptial or marriage agreement, see the “Pensions” section on the Property Division for Married Spouses Information Page.

Religious considerations: The Muslim “Mahr”

A Mahr is an Islamic marriage contract where the groom promises to give a certain amount of money to his bride at certain times during their marriage or when certain events occur, such as upon the husband’s death or if the marriage breaks down. The Mahr is somewhat similar to the concept of “dower” in Canadian law, but it is not limited to real property. It is a gift from one spouse to another (from the husband to the wife in this case), and it is intended so that the wife can take care of herself if the marriage ends.

A Mahr is entered into before the parties marry, and the promised amount becomes the property of the wife. Most Mahrs will include a portion that will be paid promptly at the time of marriage, and the rest will be deferred.

In Canadian law, some Mahrs have been recognized while others have not. An Alberta court has ruled that a Mahr can be considered a valid pre-nuptial agreement if it meets all the legal requirements of a pre-nuptial contract—see the following resource to read the case.

To see what these legal requirements are see the “Before you begin: Contract law basics” and “Additional contract requirements for pre-nuptial and marriage agreements” sections above.

For more information on Mahrs and how they are recognized under Canadian law, see the following resources.

PDF Domestic Contracts: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.

PDF Muslim & Canadian Family Laws: A Comparative Primer
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.


Web Did Traditional Dowry Gift from Groom’s Family Come with Conditions?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

PDF Enforcing Mahr in the Canadian Courts
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.
Religious considerations: The Jewish get

A get is a Jewish divorce that can only be given by a husband to his wife. In the Jewish faith, a woman is considered married until she receives a get, even if she is granted a divorce in court. Therefore, if she does not have a get, she cannot remarry within the faith. If she has any children with a man who is not her husband (or ex-husband if they are divorced for civil purposes), those children will be considered illegitimate in the Jewish faith.

This power imbalance may give a husband an advantage in any separation negotiations. To deal with this issue, some Jewish women choose to include this issue in a pre-nuptial or marriage contract. It may be possible for the couple to agree ahead of time that if they were ever to separate, the husband will give the wife a get.

Because there have not been a lot of cases in this area, it is hard to say whether a term like this in a pre-nuptial or marriage agreement would be enforceable after separation. However, the Supreme Court of Canada has said that removing the religious barriers to remarriage is consistent with the public policy of Canada, so it may be upheld in court.

See the following resources for an example of a case where this issue has been addressed.


Web Bruker v. Marcovitz (SCC)
CanLII
English


Getting independent legal advice

Before you sign any legal document, it is very important that you understand the document you are signing and you are aware of what could happen as a result of signing the document. If an agreement is ever challenged in court, the court might set that agreement aside if one party did not fully “understand” the agreement.

One of the ways of making sure you understand an agreement is by getting “independent legal advice.” This means a person consults a lawyer about a contract he or she wants to sign before signing the contract, and the lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities. If one or more parties did not get independent legal advice before signing the agreement, a court may decide that the parties did not truly understand the contract when they signed it, and may “set aside” the agreement as a result.

For agreements that deal with the division of matrimonial property, independent legal advice is required. This means that if you want to enter into a pre-nuptial or marriage agreement that deals with the division of matrimonial property, you must get independent legal advice. If you do not go to a lawyer, your agreement about the property will not be binding and the other party could ask the Court to ignore the agreement when dividing up the property.

Getting independent legal advice is also otherwise beneficial for the parties because a lawyer will catch any topics or issues that you may have missed or hadn’t thought about. They can also clarify any unclear terms or conditions in your agreement.

If you and the other party decide to write your own pre-nuptial or marriage agreement, you can get a lawyer to review that written agreement at any time before the final signing. You can also see a lawyer earlier if you want legal advice on the terms of your agreement or whether you should enter into an agreement at all. The lawyer will make sure that you understand the law and the legal consequences of the steps being taken, including your rights and responsibilities. The lawyer will also be able to tell you what options you might have if you don’t sign the agreement. Getting independent legal advice is one way to help prevent either party from saying that they didn’t understand the agreement when it was first drafted, or that the agreement wasn’t fair.

The lawyer who gives legal advice will usually sign a Certificate of Independent Legal Advice. This certificate confirms that you:

  • understood the agreement,
  • received advice about how the agreement affects your legal rights and interests, and
  • chose to enter into the agreement on your own free will. There should be a specific clause in the certificate that states that the lawyer confirms that you entered the agreement without being pressured into it.

For more information about getting independent legal advice and why it can be very important, see the Working with a Lawyer Information Page and the following resources.

Web All About Independent Legal Advice (Family Law ILA)
Kahane Law Office
English
This is a private source. Learn more here.

Video Independent Legal Advice and Separation Agreements
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here. This resource is specific to separation agreements, but some concepts still apply.

Video Demandez à un expert - Vidéo 1
Family Law NB
French
This resource is from outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Pitfalls of Matrimonial Agreements (article included in "Family Law Boot Camp")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Providing disclosure

When you enter into a domestic contract, you must provide accurate and complete disclosure. This is likely the single most important thing the parties can do to ensure the agreement will not be “set aside” in the future.

If a court finds that one party had lied about his or her assets or debts (and this can include “omitting” important information), the agreement has a good chance of being “set aside” in part or in whole. So if you decide to enter into an agreement and spend time and money doing it, you will want to disclose your financial information as accurately and completely as possible.

Common mistakes when making a pre-nuptial or marriage agreement

In order to make sure your pre-nuptial or marriage agreement will stand up in court (as much as possible), there are some common problems that you and the other party should try to avoid.

Not enough disclosure

Having full and complete disclosure between the parties may be the single most important thing when you enter into a family law agreement. If it is later found that one party was hiding information, or hiding assets, it is likely that the agreement will be “set aside.” If one party doesn’t know what assets the other party owns, then he or she cannot consent to not dividing it. Even when the other party has a general idea about your financial situation, you still have the duty to actively provide disclosure: this means telling the other party about all assets and debts, which generally includes information about the exact amounts as well. When it comes to disclosure, the more the better.

Future uncertainties affects whether certain terms can be enforced

This is a tough problem to avoid, as it is impossible to see the future. This can be especially relevant for parties who wish to contract out of any future spousal support. Although parties can agree to waive spousal support in a pre-nuptial or marriage agreement, the circumstances at the time of separation will be a big factor in determining whether the waiver will be enforced.

When a court looks at whether one spouse should pay spousal support to the other, there are many factors that will affect the Court’s decision. One factor is whether the circumstances at the end of the relationship was anticipated by the parties when the agreement was signed. So, if you intend to waive spousal support in a pre-nuptial or marriage agreement, try your best to plan for all the possible circumstances that may arise in the future (such as an illness or an accident). Another factor courts will take into consideration is the intention of the parties at the time the agreement was signed. A waiver of spousal support in a pre-nuptial or marriage agreement could be seen as an indication of the parties’ intentions to be self-sufficient if the relationship breaks down.

Independent legal advice that isn’t really “independent”

It is important that independent legal advice be truly independent: the parties should find lawyers who are not associated with each other at all. For example, a lawyer who is related to your spouse may not be viewed as independent. Similarly, using two lawyers who work in the same office may not be viewed as independent (and most legal firms will not do this).

Independent legal advice should also be more than just a formality: you need to do more than just show up for the appointment. Don’t expect the lawyer giving independent legal advice to advise you on the agreement without any context or background information. Remember, a lawyer who gives independent legal advice is more than just a witness. He or she is supposed to advise you on your agreement. If the lawyer doesn’t advise you properly, he or she can be held responsible if you later find out you had more rights and decide to sue him or her for not giving you proper advice. A lawyer cannot give advice if he or she does not have the required information.

Wishful thinking

Sometimes, one party may sign a pre-nuptial or marriage agreement believing that it is only a formality and the agreement “doesn’t actually count.” Perhaps he or she is told by the other party that the agreement is intended to keep someone else happy, or it’s just to reduce future tax obligations. Although the other party may think that, a pre-nuptial or marriage agreement (or any family law agreement) is a legally binding contract. Make sure you understand what you are signing and get independent legal advice even if the other party believes the agreement is not important.

Aboriginal matters and on-reserve considerations

For many of the issues above, being Aboriginal does not change anything. However, if you live on-reserve there can be differences (even if you are not Aboriginal).

For more information about property rights upon the breakdown of your relationship if you live on-reserve, see the Family Breakdown if You Live on Reserve Information Page.

Blended family considerations

The law around pre-nuptial and marriage agreements is no different for blended families than it is for any other families.

However, a person who is in a blended family may have more complicated family obligations. As a result, if you are planning to enter into a pre-nuptial or marriage agreement, and either you or the other party has children from previous relationships, there may be additional issues you would want to deal with in your agreement.

In reality, many people who enter into a pre-nuptial or marriage agreement are those who are a part of, or going to be a part of, a blended family. A pre-nuptial or marriage agreement is a good opportunity for these individuals to deal with the complex issues that may arise in a blended family. In the case of blended families, it may be very helpful to work with a lawyer to create a pre-nuptial and marriage agreement.

For more information, see the Working with a Lawyer Information Page and the following resource, which is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

LGBTQ considerations

The law around pre-nuptial or marriage agreements is no different for LGBTQ families than it is for any other families. Unfortunately, LGBTQ families sometimes still face social stigmas and battles that non-LGBTQ families may not (and they may not even be “out” to extended family members). Although the nature of the relationship should be clear when two individuals are married or planning to get married, it is still a good idea have legal documents that identify the nature of the relationship (such as pre-nuptial or marriage agreements, Wills, Personal Directives, and Powers of Attorney) and that these documents be clear and specific.

Polyamorous relationships

Polygamy is illegal in Canada. This means a person cannot be married to more than one person at any time. Also, a person cannot be in an Adult Interdependent Relationship (AIR) with more than one person at anytime. Also, if you are living with your spouse, you cannot be in an AIR with another person. Therefore, there can only ever be two partners or spouses who are subject to the rights and obligations under federal or Alberta law.

This means that not everyone involved in a polyamorous relationship will have the same level of protection under the law. For example, if there are 3 people involved in a polyamorous relationship and 2 of the 3 people are married, then the 2 people who are married will have all the protections the law provides married people, while the third person will have no protection under the law.

However, it is possible to have more than 2 parties to a cohabitation agreement. In fact, a cohabitation agreement may be a good way for polyamorous families to set their own “rules,” since neither federal nor provincial laws will give them any rights or responsibilities. However, because polyamorous relationships are not recognized under the law, enforcing a cohabitation agreement between multiple romantic parties can be difficult. In particular, any term that is considered to be “against public policy” will not be enforced—see the “Before you begin: Contract law basics” section above for more information about this.

The issues that could arise in polyamorous relationships can be very complex. Therefore, it may be very helpful to work with a lawyer to create a cohabitation agreement. For more information, see the Cohabitation Agreements Information Page and the Working with a Lawyer Information Page.

Once you have a legally binding pre-nuptial or marriage agreement

Once you have an agreement, keep it in a safe place. It is a good idea to sign multiple original copies so that both parties and your lawyers (if you have lawyers) will have one. You do not have to file the pre-nuptial or marriage agreement anywhere.

You and your spouse may decide to update or change your pre-nuptial or marriage agreement from time to time or when certain events happen.

Changing a pre-nuptial or marriage agreement

Sometimes, you might need to change (or “amend”) your agreement because your circumstances have changed. This can happen even if you and your spouse have already spent a lot of time coming to an agreement in the first place. You can change, add to, or even cancel your agreement as long as all parties to the agreement agree to do so.

For more information about changing your agreement, see the Process tab of this Information Page, and the following resource.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

What happens if your marriage ends?

In general, when a married couple separates and they have a pre-nuptial or marriage agreement, the terms of that contract will govern the legal issues that come up during the separation. If your marriage ends, then you and your spouse can follow the terms of your pre-nuptial or marriage agreement and part ways. If the terms of the agreement are followed and the agreement is not challenged in any way, you may never need to involve a court.

However, having a pre-nuptial or marriage agreement does not necessarily mean that the parties will follow it if you separate. If one or both parties refuses to follow the agreement and/or claims there is a legal reason that the agreement (or parts of the agreement) should not be enforced, you may need to involve a court.

For more information about what occurs with a pre-nuptial or marriage agreement when a married couple separates, including more detail about all of the above topics, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

Remember

Even though a pre-nuptial agreement is made before a couple gets married, the agreement only takes effect after the couple gets married. This means if two people sign a pre-nuptial agreement but don’t end up getting married, they will not have any of the rights and responsibilities they’ve created for themselves in their pre-nuptial agreement. All they will have are the rights and responsibilities the law gives unmarried partners (or if they have a valid cohabitation agreement, that will govern their pre-marriage relationship breakdown). See the Ending a Non-married Romantic Relationship Information Page for more information about how the law treats unmarried partners separating without a domestic contract.

What happens if we have a pre-nuptial agreement but we separate before we get married?

When two parties enter into a pre-nuptial agreement, the agreement is intended to govern the upcoming marriage. Legally, a pre-nuptial agreement does not take effect until the parties are married. This means if you and the other party sign a pre-nuptial agreement but don’t end up getting married, the terms of your pre-nuptial agreement will not govern your separation. Instead, depending on what legal status you have, the law will give you different rights and responsibilities—see the Ending a Non-married Romantic Relationship Information Page for more information about what those rights and responsibilities may be.

However, if your pre-nuptial agreement clearly considered what would happen if you were to separate before getting married (a “combined” cohabitation and pre-nuptial agreement), then it may still be enforceable. For more information about what occurs with a cohabitation agreement when a non-married couple separates, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

Process

Learn more about how to make a pre-nuptial or marriage agreement, including:

  • Topics to include
  • Negotiating the terms of the agreement
  • Using a lawyer to write your agreement or doing it yourself
  • Finalizing the agreement
  • Making changes to the agreement


Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: August 2016
Who is this Information Page for?

This Information Page is for people who want to create an agreement to govern their marriage and what would happen if they separate. If you enter into an agreement like this before you get married, it is called a pre-nuptial agreement. If you enter into an agreement like this after you get married, it is called a marriage agreement. 

If you are not sure if you are married or not, see the Getting Married Information Page.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand the nature and legal requirements of a pre-nuptial or marriage agreement. Once you have the basics down, you will be in a better position to learn about the process of creating a pre-nuptial or marriage agreement.

Each relationship is unique. Sometimes both parties involved may want a pre-nuptial or marriage agreement. Other times, it might be just one of the parties who suggests the idea. Or one party could have created a complete pre-nuptial or marriage agreement on his or her own before showing it to the other party.

There is no one correct way to discuss this issue and neither party should feel bad about wanting or not wanting a pre-nuptial or marriage agreement. Whether you want to sign a pre-nuptial or marriage agreement, or are given one to sign, the most important thing is to fully understand the agreement.

You can work with a lawyer to help you draft an agreement and tell you about your legal rights. See the Working with a Lawyer Information Page for more information.

You are currently on the Process tab of this Information Page, which has information on the process of creating a pre-nuptial or marriage agreement. There is also important information in the Common Questions, Myths, and Law tabs above. Please see the Law tab of this Information Page for general information about pre-nuptial or marriage agreements. In particular, if you have not already done so, you may want to review the “What the words mean” section of the Law tab.

Bringing up the topic

It can be hard to bring up the topic of signing a pre-nuptial or marriage agreement with your partner or spouse, regardless of whether you are planning to get married or have been married for many years. On TV, we often see this type of agreement portrayed as a mean person trying to “give nothing” to another person upon separation. This is not necessarily true. A pre-nuptial or marriage agreement protects the parties as much as it may limit their rights. It can make the future more predictable and certain for the parties.

If you want to bring up the topic of signing a pre-nuptial or marriage agreement, find a time where you can have an honest conversation with the other party without being rushed. The other party might need time to get used to the idea.

Be Aware

It is very possible that the other party might not be happy about being asked to sign a pre-nuptial or marriage agreement at first. You may have to bring up this topic more than once before you are able to have a real discussion about it. This is a good opportunity to “get a feel” for what the other party expects from the marriage.

It is also possible that the other party will refuse to consider a pre-nuptial or marriage agreement. You can try to tell the other party the reasons you want a pre-nuptial or marriage agreement and the reality that not all marriages last forever. But you cannot (and should not try to) force someone into signing a pre-nuptial or marriage agreement.

When discussing this topic, you may wish to encourage the other party to seek legal advice from the start. Both parties will need to understand their legal rights and responsibilities before entering into a pre-nuptial or marriage agreement, and getting “independent legal advice” is required for any agreement dealing with matrimonial property.

You may also suggest that the other party give his or her input about the pre-nuptial or marriage agreement. The more the agreement is a product of mutual cooperation, the less likely one party will feel like he or she was taken advantage of in the future.

Lastly, as part of the agreement-making process will include providing complete financial disclosure to the other party, you can consider including some disclosure when you bring up the topic. This can help to show that you are trying to be completely transparent—and not trying to hide things—which can help to build trust.

For more information about how to bring up the topic of signing a pre-nuptial or marriage agreement, see the following resource.

Web How to Talk about a Prenup: 5 Tips to Start the Conversation
McGurk Fraese Family Lawyers
English
This is a private source. Learn more here.

The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Do we need a cohabitation agreement? : Understanding how a legal contract can strengthen your life together
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 7. This resource talks about cohabitation agreements, but many of the general ideas apply to pre-nuptial or marriage agreements as well.

Before you start: Learn the law

Regardless of what type of agreement you want, if you are planning to create it on your own, it will be helpful to learn about the important issues that can arise. For example, there are things you must include in any agreement and things you cannot ever have in any agreement to ensure that it will not be “set aside” by a court in the future. See the Law tab of this Information Page for more information about what makes a valid contract.

In addition, understanding what your rights are under the law may help you make an informed decision about the terms of your pre-nuptial or marriage agreement. By knowing what you are entitled to under the law, you will better understand what you are giving up as a result of signing the agreement. When people only find out afterward what their rights and options were under the law, it can lead to resentment, and attempts at “undoing” the terms of the agreement. Also, if one or more of the parties did not understand their rights, any agreement can be refused or overturned by a court.

Be Aware

When writing a pre-nuptial or marriage agreement, you cannot ignore the law. If you include any terms in your agreement that are against the law, the agreement will not stand up in court.

For detailed information about how married spouses are treated under the law, see the following Information Pages. Note that some of these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section on the Law tab of this Information Page.

Figuring out what you need to agree on: Topics you may want to include in your pre-nuptial or marriage agreement

Now that you and the other party have decided you want a pre-nuptial or marriage agreement to govern your marriage and its potential breakdown, you need to think about what you want to include in the agreement.

Whether you are planning to write up your own agreement or hire a lawyer to do it, you and the other party will have to negotiate the terms of your pre-nuptial or marriage agreement. Only you know what issues are important to your relationship and what needs to be included in the agreement.

You will want to learn the law relevant to you so that you understand your rights and responsibilities under the law if you don’t have an agreement.

There are generally 2 main categories of issues in any pre-nuptial or marriage agreement:

  1. issues during the marriage, and
  2. issues if the parties end their marriage.

Issues during the marriage

This is the “everyday” stuff. How will bills be paid while you are married? How will household chores be divided between the parties?

The parties will have to decide how much of the “everyday” stuff to include in their agreement. The difficulty with including these type of issues is enforcement and the fact that it is impossible to foresee the future. For example, you may each agree to pay half the rent, but what happens if one party loses his or her job?

As long as the parties are mentally capable adults, they can largely contract as they like. The law doesn’t tell people how to live their lives and how to conduct their personal relationships. So it is entirely up to the parties to decide how much of the “everyday” stuff they want to include in their pre-nuptial or marriage agreement.

However, the parties cannot contract to do something that is against the law or against public policy—see the “Before you begin: Contract law basics” section on the Law tab of this Information Page for more detail about this.

Issues if the parties end their marriage

Issues in this category can be more complicated than the ones above. Often, the parties will have to first figure out what they want if they were to separate, then figure out what the law requires in their situation if they were to separate, and finally figure out how to fit “what they want” into “what the law requires.”

There are usually 3 main topics to consider when separating:

  1. issues relating to children,
  2. spousal support, and
  3. property division.

For the law that governs these 3 topics, see the “Things to include in a pre-nuptial or marriage agreement” section on the Law tab of this Information Page.

Issues relating to children

Below are some issues relating to children you may or may not want to address in your pre-nuptial or marriage agreement. Each family is unique. These questions are only intended to help you brainstorm about the issues that are relevant to you and your family.

  • Does either party have children from previous relationships? If so, you may want to include the basic information about these children, such as their full names and birthdays.
  • Do the parties have children from this relationship by birth or adoption? If so, you may want to include the basic information about these children, such as their full names and birthdays.
  • If you were to separate in the future, who will be making important decisions about your children? For example, decisions about education, religion, and health. Will one of you have the “final say” or will you be making decisions together? Will the decision-making power fall to whomever has the care of the child at the point of time in question? This does not have to be only one of you. You can share the power to make decisions about your children with the other parent. But consider if the two of you will be able to agree on the decision. You may want to include your “intentions” behind these preferences.
  • If you were to separate in the future, where will your children live? Will they live mostly with one parent or will they spend about equal time with both parents? If they live mostly with one parent, how much time will they spend with the other parent?
  • If you were to separate in the future, how much child support will one parent pay to the other, and how will additional or “extraordinary” expenses be divided between you and the other parent? Remember that you are bound by the Child Support Guidelines—see the Child Support under the Divorce Act Information Page for more information.
  • For children from previous relationships, does the non-biological partner/spouse want to be a “parent” to these children? Would the non-biological “parent” in this relationship want to maintain a relationship with their non-biological children if their relationship with the biological parent were to end?
Remember

When making arrangements for children in any family law agreement, the most important thing to remember is that any decision regarding your children (such as guardianship and contact with the child) must be made in their best interests. In addition, when dealing with issues about children, a court can always have the final say no matter what the parties involved have agreed upon. This is because of the “parens patriae” jurisdiction: for more information about that, see the “Common topics to include in a pre-nuptial or marriage agreement” section of the Law tab of this Information Page.

For detailed information about how these topics are treated under the law and other things you might want to consider when making these choices, see the following Information Pages. Note that these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section on the Law tab of this Information Page.

Be Aware

Not all provinces allow parents to contract about issues relating to their children in a domestic contract. For example, the law in Ontario forbids parents from entering into an agreement (before the parents separate) about parenting time, custody, or access. If you think that you might be moving to another province, be sure to consider that province’s rules to ensure that your agreement will be enforceable in your new province.

Spousal support

Below are some questions to consider when thinking about terms of spousal support. Not all questions may be applicable for your situation.

  • Will one party pay spousal support to the other if the spouses separate? Or will there be no support paid by either party to the other? Or perhaps it will only be payable if the parties are married for at least a certain number of years? Or will you follow what the law requires at the time of separation?
  • If you decide one party will pay spousal support to the other, will the support be a lump sum payment or a fixed monthly amount?
  • Is there a requirement for exclusive possession of some of the property? For example, the condo or vehicle the couple purchased together may be used exclusively by one spouse for a certain amount of time if they separate to help that spouse “get on their feet.”

For more information, see the Partner Support under the Family Law Act Information Page and/or the Spousal Support under the Divorce Act Information Page. Note that these Information Pages’ topics are divided between the Family Law Act and the Divorce Act. If you are not sure which law may apply to you, see the “The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?” section on the Law tab of this Information Page.

Property division

Remember, there is a set of “rules” that governs property division of married people. This is the Matrimonial Property Act. In this law, the things owned by a married couple are separated into different categories, and each category is treated differently if the property is to be divided after the spouses separate. You can use a pre-nuptial or marriage agreement to “customize” the default position of the law. Keep in mind that property is more than just “the things you own” (your assets)—it also includes “the things you owe” (your debts).

  • Do you want the Matrimonial Property Act to apply in general and just have certain assets or debts that are exceptions? Or do you want to create an entirely different set of rules to govern all of your assets and debts?
  • What will be treated as separate property (not subject to any kind of division) and what will be treated as shared property (subject to division) if you were to separate? Perhaps you want everything bought by either party up until the date of the agreement or the date of marriage to be considered “separate property” and everything after would be “shared property” (regardless of whose name is on it)? Or perhaps certain properties will be considered shared while everything else remains separate (for example: the house you live in and the car you drive may be considered shared even if it is in one person’s name, while your RRSPs and pensions remain separate)?
  • How will the shared property be divided if you separate in the future? Does each party automatically get half? Perhaps you want to base the division on the how much each party has contributed to the asset at the time of separation?
  • Do you intend to transfer property between the parties upon separation? If so, you may want to specify how this transfer will happen.
  • What debts will be treated as separate debts and what debts will be treated as shared debts? Are all debts separate unless it is shown that it is a “family debt”? Perhaps everything each party owes up until the date of this agreement or the date of the marriage is “separate debts” and everything after will be considered “shared debts”? Perhaps certain types of debts will remain separate while other types of debts will be shared? (For example: the parties may want their student loans to remain separate while their credit card debts will be shared.)
  • How will shared debts be divided if you were to separate? Does each party automatically owe half?
  • What is the value of a certain asset right now? If it increases or decreases in value by the time you split up, how will you account for that?
  • Did either party each bring anything into the marriage? Do you want to take back what you brought into the marriage if you were to separate? (For example: if you paid the down payment for a condo but the mortgage payments are divided equally between you and your spouse, do you want to “keep” the down payment amount if you later separate?)
Remember

Once you are married, dower rights will apply. You cannot contract out of dower rights in a pre-nuptial or marriage agreement. This means that if the family home is solely owned by one of the spouses and either spouse has lived in the property since the marriage, the non-owning spouse has some rights to it. The legal owner cannot sell or give away the property without the consent of the non-owning spouse. For more information about dower rights, see the “Once you are married: Dower rights, premarital debts, and pensions” section on the Law tab of this Information Page.

For more information about how property division is treated under the law, see the following Information Pages:

If you have your own business, you may want to protect it even if your spouse helps you run it during your marriage. This is a very complex area of law—consider consulting a lawyer. For more information, see the following resources.

Web Cohabitation and Protecting a Business
Self-Counsel Press
English
This is a private source. Learn more here. Although this resource talks about cohabitation agreements, many of the general ideas apply to pre-nuptial or marriage agreements as well.
Web Divorce and family businesses
Kirk Montoute LLP
English
This is a private source. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Identifying Corporate Aspects of Family Law (article included in "All That Touches Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

For more general information about things to consider when making a pre-nuptial or marriage agreement, such as what to include and what not to include, see the following resources. Most of these resources are not from Alberta, so purely legal information about provincial laws do not apply to Albertans, but there is much other good information.


PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here. See p. 5-9.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Making an agreement when you live together
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

Web Prenuptial Agreement Lawyers
Kahane Law Office
English
This is a private source. Learn more here.

The folllowing resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book If You Love Me, Put It In Writing
Alison Sawyer
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Part One, Chapter 3 and Part Two, Samples 1 and 2.
Negotiating the terms of your pre-nuptial or marriage agreement

Once you understand your rights and obligations under the law and the issues you want to address in your pre-nuptial or marriage agreement, you and the other party can begin negotiating each relevant issue, and try to come to a result that satisfies both of you. It may be helpful to make a list of these issues by yourself before discussing them with the other party.

The process of negotiation involves compromise, trying to understand the other party’s needs, and communicating your needs to the other party. Having a “give and take” mentality during your negotiation may work better than simply giving the other party a list of demands. Be sure to take notes of your oral agreements during your discussion. This will hopefully help you avoid discussing the same issue multiple times. For more general information about negotiating styles, see the “Negotiation” section of the Alternative Dispute Resolution Information Page.

Including disclosure in your agreement

As mentioned above, having complete and accurate disclosure is very important when you are creating a pre-nuptial or marriage contract. You can add the disclosure to your pre-nuptial or marriage agreement as a “schedule,” which is just a legal word for relevant documents attached to a contract. When providing disclosure, more is better. A lack of disclosure could be a reason a court “sets aside” an agreement in the future. “Setting aside” an agreement means that a judge decides that there is something wrong with the agreement itself or how it was reached, and therefore the agreement does not have to be followed.

Don’t forget the small things

Ideally, you don’t want to leave any loose ends behind because they may lead to future disagreement. It might be a challenge to think of little details when dealing with a major change like getting married. Take some time to consider whether everything has been accounted for.

For example, if you and the other party decide to sell your matrimonial home if you were to separate in the future, some “small things” you may want to include in your agreement (but may easily forget) could be:

  • Who will hire a realtor to sell the home?
  • How will the listing price be decided?
  • How long after it has been on the market would you want to lower the listing price?

Be realistic

Be realistic with the obligations that you include in your agreement. Even though something might sound easy to do (for example, paying off a shared credit card within one year of separation), it might not be. It depends on your situation. Therefore, think carefully and realistically about obligations before you include them in your pre-nuptial or marriage agreement.

Try not to rush

Creating a domestic contract with another person isn’t an easy task (and it can be awkward to discuss when your relationship is going strong). You may be tempted to write up the pre-nuptial or marriage agreement quickly and just get it over with. However, it is important to be patient and not rush your agreement. It might be much harder to change your agreement in the future if you are unhappy with it. You will want to make sure your agreement is something you will be satisfied with not only now, but in the future as well.

Drafting the agreement: Putting it down in writing

Once you and the other party have agreed on all of the relevant issues, you can create a written agreement.

Using a lawyer, or not using a lawyer

You can either ask a lawyer to write up the terms of your pre-nuptial or marriage agreement or you can write it yourself. Lawyers tend to have more experience writing family law agreements and using standard terms and clauses. Therefore, having a lawyer write up your pre-nuptial or marriage agreement may save you some trouble.

A lawyer will also be able tell you about the obligations and duties arising out of the agreement, what rights you are giving up because of your agreement, and how the agreement might affect other things you may not have been aware of.

However, this does not mean you cannot write your own pre-nuptial or marriage agreement that will have the same legal effect as one written by a lawyer. The important thing to remember when drafting your own written agreement is that your agreement must be clear about the parties’ intentions. The courts will generally uphold a fairly negotiated agreement as long as the terms are reasonable.

Regardless of who puts the agreement in writing, you must review it carefully to make sure that it accurately and fully reflects your intentions. Make sure all the issues that were agreed upon have been included in your agreement. You must also make sure that all the legal requirements of a binding contract are met.

Remember

If your pre-nuptial or marriage agreement deals with property, then the agreement must be in writing and both parties must get independent legal advice.

Doing it yourself: Format, sample clauses, and templates

There is no strict format to follow when drafting an agreement. However, keep in mind that any contract will have certain legal requirements. See the “Before you begin: Contract law basics” section of the Law tab of this Information Page to learn about these legal requirements

You may have seen agreement “templates” (sample agreements) available on the internet or at bookstores. You can also get templates from your local library.

Be careful using these templates. The law changes all the time and such templates are not always up-to-date. In addition, no template is specific to your exact circumstances. Everyone’s situation is unique.

Before you copy any clause into your agreement, it is important to carefully read through it to make sure you understand what it means, and that it applies to your circumstances. Even if the clause sounds good or if you know someone else who used it before, that does not mean that it will be suitable for your situation. You must understand every part of a template before you use it in your agreement. Otherwise, you will not know if the agreement is appropriate or something you are willing to agree to.

Although you may wish to use these templates as a guide, remember that they are not a substitute for learning about your legal rights and responsibilities and getting legal advice. Also, some of these templates can be quite expensive, and you may be able to get some legal advice for a similar cost.

For some sample clauses and templates, as well as examples of terms you can include in your pre-nuptial or marriage agreement, see the following resources.

Web Talk to your partner and make your own agreement
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Pre-Nuptial Agreements - Just in Case
Duhaime.org
English
This is a private source. Learn more here.

Web Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here. Start with “Drafting considerations.”

Web Top 10 Tips on Drafting Domestic Contracts
Russell Alexander, Collaborative Family Lawyers
English
This is a private source. Learn more here.

Web Prenup Template
Behrendt Professional Corporation
English
This resource is from a private source outside Alberta. Learn more here.

The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book The prenuptial guide: Contracts for lovers
The Alberta Library
English
Although the title refers to “pre-nuptial” agreements, many of the general concepts apply. Access the full book from The Alberta Library.

Book If You Love Me, Put It In Writing
Alison Sawyer
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. Part Two, Samples 1 and 2.


Book Drafting Domestic Contracts (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Drafting Considerations (article included in "38th Annual Banff Refresher Course: Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library

Book Documenting the Deal (article included in "Cohabitation and Pre-nuptial Agreements")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.
Remember

If your pre-nuptial or marriage agreement deals with property, then the agreement must be in writing and both parties must get independent legal advice.

Finalizing your agreement

To finalize your agreement, each party will have to sign it. Once it is signed, the agreement is binding (meaning that you will each have to follow the terms of the agreement or the other party could take legal action against you).

In general, agreements take effect on the date it was signed, unless the agreement states a different day that it will take effect. So, if you sign a marriage agreement, it will take effect on the day the last person signs it, unless the contract names a later date. With a pre-nuptial agreement it is a little different, as it cannot take effect before the marriage (even though you would sign it before the marriage). In this case, it would generally take effect on the day you get married (unless the contract names another date).

It is a good idea to each have a witness to your signature. Your witness watches you sign the agreement, and then he or she signs the agreement to “prove” that he or she watched you sign. The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

You do not have to be in the same room with the other party when you sign the agreement. Each party (with his or her witness) can sign the agreement at separate times. If that occurs, the agreement would take effect when the last signatures are made (unless the agreement is a pre-nuptial agreement, which would take effect when the parties get married or if the agreement states a different date).

Tip

Before you sign the agreement, you may want to take some time to think about it. Family issues are important and often tricky. You’ll want to make sure that you do not rush into things and that you are certain about your decisions.

You should at least have 2 original copies of your signed pre-nuptial or marriage agreement: one for each of the two parties. Original copies are different from photocopies. Original copies are physically signed by all parties (and witnesses if there are any). Since the parties must have received independent legal advice, the lawyers involved may also each want to keep an original copy.

Changing a pre-nuptial or marriage agreement

Sometimes, you might need to change (or “amend”) your agreement because your circumstances have changed. This can happen even if you and the other party have already spent a lot of time coming to an agreement in the first place. You can change, add to, or even cancel your agreement as long as all parties to the agreement agree to do so.

Tip

Never change an agreement by crossing a term out, replacing it with another, and putting your initials next to the change. Simply crossing out terms can lead to problems enforcing it in the future.

For more information about changing your agreement, see the following resource.

Web Marriage Agreements and Cohabitation Agreements
Canadian Bar Association - British Columbia Branch
Chinese, English, Punjabi
This resource is from outside Alberta. Learn more here.

How to make changes when all of the parties agree

A pre-nuptial or marriage agreement can be changed if both parties agree to that change. An agreement can be changed by adding a second agreement to the initial agreement. This is commonly called an “amending agreement” or an “addendum.” The second agreement should specify which particular parts of the original agreement have been changed and then set out the new agreement. Remember to date, sign, and have someone witness the amending agreement to help ensure that the changes will be valid.

How to make changes when the parties do not agree

If the parties cannot agree about changing the agreement, they may need to find a way to resolve their disagreement in order to reach a new agreement. Parties can attempt to do this on their own, with the help of others out of court, or by going to court.

For more information on how to resolve your own disputes, see the Coming to an Agreement on Your Own Information Page. Changes can also be made through mediation or other methods of dispute resolution. Mediation is a type of out-of-court dispute resolution where the parties try to come to an agreement with the help of an independent and trained third party. The mediator does not take sides and does not make the decisions for you. For more information about mediation, see the “Mediation” section of the Alternative Dispute Resolution Information Page.

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