What is a prenuptial agreement?
A prenuptial agreement in Alberta is a legal contract agreed upon by two people planning to get married. This contract sets the terms for how people divide assets or debt within a marriage – but more commonly it is for how assets would be split in the event of a separation.
Essentially, this agreement provides an alternative to the Matrimonial Property Act of Alberta, or MPA. The MPA sets the standard for how property is divided within the marriage, such as the division of material goods, who gets the home shared between the two, any support that must be paid, child custody, and more. It’s The definition of equal separation will always be dependent on the circumstances of the marriage. These decisions around separating property and determining child custody are often the most difficult and emotional part of any divorce.
For couples seeking to have more control over this often messy legal process, a prenuptial agreement (or marriage contract) is a great way to have peace of mind.
A prenuptial agreement can:
- Determine how assets are to be divided or used during a marriage and/or in the event of a separation
- Exclude property from being included in the division process
- Determine how to divide debt
- Make rules for how property purchased together is divided
- Make rules for how property owned before the marriage is divided
- Make rules for who pays for certain expenses
- Decide who gets the home
- Establish a framework for child custody issues, such as:
- Child custody determinations,
- Payment of spousal support,
- Child access,
- Determination of educational and/or religious decisions of the child,
- Establish agreements on rights and obligations during the relationship
- Establish any mutually agreed upon terms (that are legal of course).
In order to be enforceable, a prenuptial agreement has the following rules (as defined in sections 37 and 38 of the Act):
38(1) An agreement referred to in section 37 is enforceable if each
spouse or each person, in the case of persons referred to in section
37(2), has acknowledged, in writing, apart from the other spouse or
(Translation: both people need to put in writing that they agree to the following items, while their fiancé(e) is not present)
(a) that the spouse or person is aware of the nature and the
effect of the agreement,
(You agree you understand the purpose of the contract)
(b) that the spouse or person is aware of the possible future
claims to property the spouse or person may have under
this Act and that the spouse or person intends to give up
these claims to the extent necessary to give effect to the
(You understand the effects of the contract)
(c) that the spouse or person is executing the agreement freely
and voluntarily without any compulsion on the part of the
other spouse or person.
(You are agreeing to the contract freely)
(2) The acknowledgement referred to in subsection (1) shall be
made before a lawyer other than the lawyer acting for the other
spouse or person or before whom the acknowledgement is made by
the other spouse or person.
(When putting this in writing, both people need to use a different lawyer)
RSA 1980 cM-9 s3
Brent Hemington can help ensure your prenuptial agreement is completed properly with all the information you need – and is done in your best interests.