Prenuptial Agreements in Canada

Legal Requirements for Validity

For a prenuptial agreement to be valid, it must:

• Be in writing
  
  
• Be signed by both parties
  
  
• Be witnessed
  
  

These agreements can cover a wide range of issues, including:

• Property ownership or division
  
  
• Support obligations
  
  
• Matters related to education and moral upbringing of children (excluding custody or access rights)
  
  
• Any other agreed-upon matter
  
  

However, the law does not allow spouses to contract out of the statutory protections regarding rights to the matrimonial home.

Court Authority to Set Aside Support Provisions

Under the Family Law Act, a court may override a support provision or a waiver of support in a marriage contract in the following situations:

• If enforcing it would lead to unconscionable circumstances
  
  
• If the waiver or support provision involves a dependent who qualifies for public assistance
  
  
• If there is a default in support payments at the time of the court application
  
  

Judicial Oversight and Exceptions

Prenuptial agreements are not absolute and may be challenged under certain conditions. Courts across Canadian provinces can review, modify, or disregard such agreements, especially in cases involving unexpected financial hardship or unfairness. The standard for judicial review varies by province:

• Ontario: Courts may set aside a prenuptial agreement if a party failed to disclose significant assets or liabilities, did not understand the contract, or if it otherwise fails under general contract principles. (Family Law Act, R.S.O. 1990, Ch. F.3., Sec. 56(4))
  
  
• Nova Scotia: An agreement may be unenforceable if any term is found to be unconscionable, unduly harsh, or fraudulent. (Matrimonial Property Act, R.S.N.S. 1989, Ch. 275, Sec. 29)
  
  
• Saskatchewan: Courts can redistribute property if the contract was unconscionable or grossly unfair at the time it was signed. (Family Property Act, S.S. 1997, Ch. F-6.3, Sec. 24(2))
  
  
• New Brunswick: Courts may disregard parts of a prenuptial agreement if a spouse did not receive independent legal advice and applying the provision would be inequitable. (Marital Property Act, S.N.B. 1980, Ch. M-1.1, Sec. 41)
  
  
• British Columbia: Even with a valid marriage contract, courts may re-divide property based on fairness. The Supreme Court of Canada has recognized that British Columbia law allows broader judicial discretion than other provinces. (Family Relations Act, R.S.B.C