Marriage Contracts

The Family Law Act sets out the criteria that must be met for a prenuptial agreement to be considered legally valid. Specifically, the law states the following:

• The prenuptial agreement must be in writing, signed, and witnessed;
• It must be based on complete disclosure of both partners’ respective assets, debts, and other liabilities;
• Each party must have had independent legal representation during the development of the agreement;
• There must be “equal bargaining power” between the parties. This means there can be no fraud, undue influence, duress, or unconscionable circumstances between them;
• The agreement must be clear and accurate; and
• The agreement must cover only those topics and matters that are specifically permitted under the Act.

If these requirements are met, it can generally be assumed that the prenuptial agreement will be valid and enforceable.

Courts usually uphold agreements that were freely negotiated and agreed to by both parties—no matter how unfair they may seem when circumstances later change.

(In fact, the Supreme Court of Canada has stated that while courts always retain the right to set aside or overrule an agreement that is “unconscionable,” they should otherwise be reluctant to interfere with an agreement that the spouses have freely and willingly entered into.)

It’s important to note the Family Law Act does not allow spouses to enter into an agreement relating to custody or access to the children. These matters are governed by separate and specific laws that focus on the best interests of the children.