Most couples in Alberta know what a prenuptial agreement (“prenup”) is but fewer have heard of a postnuptial agreement.
They are both types of marriage agreements or “contracts” entered into by couples who either intend to get married or have already tied the knot. In some ways, they’re similar to business contracts as they set out the financial (and other) responsibilities of each party.
A postnuptial agreement covers many of the same issues as a prenup and they both perform the same task — but a postnuptial is signed after the marriage has already begun.
This can be an effective way for couples to reduce disputes, legal wrangling and costs if the relationship breaks down in the future. Mostly, such agreements address the often-thorny subjects of marital/non-marital property and spousal support.
If you are considering a postnuptial, you should be aware of the possible legal ramifications and challenges that could lie ahead.
To be valid and legally enforceable, postnuptial agreements must be approved by the Alberta courts. Each party signing the agreement needs independent legal advice and it is generally advisable to have an experienced family lawyer help you draft the agreement.
Why might you need a postnuptial agreement?
Postnuptial (and prenuptial) agreements were once considered necessary only for the very wealthy but have become far more common in recent years. This is partly because people are getting married later in life after having already accrued significant assets.
Many people realize later — and only when they encounter problems in the marriage — that they did not take the necessary steps to protect these assets before they were married. Some spouses declined to sign a prenup before they married on idealistic grounds but later reconsider and see the benefits of doing so. Some plan to sign a postnup after they marry to avoid awkward conversations about money from spoiling their big day.
The most important aspect of a postnuptial agreement is usually the topic of how assets will be divided in the event of a marriage breakdown. However, it may also address other responsibilities and expectations, such as household chores or commitments to a monogamous relationship.
Signs that you may need a postnuptial
You may decide that a postnuptial agreement is best if any of the following apply to your situation:
- You are wealthy and never signed a prenup: if you enter the marriage with significant pre-marital assets or expect to inherit significant assets during your marriage, a postnuptial can clarify what happens to these assets if you separate from your spouse.
- You have children from a previous marriage: a postnup can allocate a share of your assets to your spouse if you divorce or die while also ensuring that your children from a previous marriage receive their fair share. Without a valid agreement like this, the entire marital estate may go to your spouse if you pass away. Your family lawyer can advise you more precisely depending on your situation.
- You own a business: spouses who own companies may want to protect business income or assets earnt during the marriage, which is possible with a postnup or prenup.
- You have received a large inheritance: inheritances are usually intended for a named individual rather than a married couple. To ensure that an inheritance received during the marriage is not subject to division as part of the marital estate if you divorce, this can be agreed upon in a postnuptial.
What are the legal concerns with a postnuptial?
The courts see the potential for agreements to be made under duress and to disregard the rights of one spouse while protecting the rights of the other. Therefore, the Alberta family law system treats prenups and postnups with some caution.
Of the two types of agreements, postnuptials are more likely to be declared invalid than prenups because they are signed during a marriage, which is accompanied by some essential family law legal rights and obligations for spouses.
A postnuptial may negate one or more of these rights. So, there is the potential for abuse in such agreements and the court must ensure that the spouse who relinquished his/her right(s) did so voluntarily and with a full understanding of the consequences.
Prenups, on the other hand, are signed before these legal rights and obligations apply so they may be more readily approved by the courts.
Whether you’re considering a prenup or postnuptial, seeking legal advice from a qualified family lawyer and getting assistance in creating your agreement can help it receive court approval.
Can you waive spousal support rights in a postnuptial?
In Alberta, married spouses and adult interdependent partners (AIPs) are entitled to claim spousal support if the relationship dissolves. Any agreement that waives these rights would be viewed with some caution by the Alberta family law courts.
The courts would need to approve the document but, provided it was signed voluntarily and without duress, a postnuptial can legally waive all rights to spousal support in Alberta.
You may need to demonstrate to a judge that the agreement was made in good faith and that both parties had a full understanding of the consequences when they signed the document. Otherwise, it could be declared invalid.
It’s best to hire the assistance of a family lawyer, especially when including potentially contentious issues like this in your postnup.
At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law matters. Book a free case evaluation to get started.
