Before you get married in Alberta, you are entitled to sign a prenuptial agreement (also called a domestic contract). A prenuptial agreement is a legal contract that outlines how your assets, debts, and other property will be handled during your marriage and in the event of separation, divorce, or death. Prenups often give couples an added sense of security when entering into marriage.
Sometimes, however, you may feel that your prenup is unfair or was created unjustly when it’s time to divorce. While prenuptial agreements are typically enforceable under Alberta’s Family Property Act (FPA), there are circumstances in which they can be challenged or deemed invalid. Our blog details how and when prenuptial agreements can be challenged in Alberta.
At Verhaeghe Law, our Edmonton divorce lawyers have helped hundreds of clients navigate the legal aspects of their separation. If you believe your prenup is unfair, we can help you evaluate your options for challenging it. To discuss your situation with our legal team, you can call our Edmonton office at (587) 410-2500 or contact us online now.
Can a Prenuptial Agreement Be Challenged?
Prenuptial agreements can be challenged in Alberta, but the process is often difficult. This is because courts will usually defer to parties’ agreements unless specific, significant problems with the contract exist.
Common grounds for challenging a prenuptial agreement include:
- Lack of independent legal advice acquired by each party
- The prenup containing unconscionable terms (extremely one-sided or unfair)
- Duress or undue influence
- Lack of full and honest financial disclosure during divorce
- Failure of the prenup to meet formal requirements under the FPA
- And more
Courts in Alberta must carefully balance contractual autonomy with injustice committed in marriage contexts. Whether you can successfully challenge your prenup will be heavily dependent on your unique circumstances. An experienced family lawyer will be able to examine your prenup to determine whether challenging it is possible, realistically.
How Can You Challenge a Prenuptial Agreement in Alberta?
To successfully challenge your prenup and invalidate its terms, there are several routes you can take. The first is to prove that it does not meet formal requirements for domestic contracts set under the Family Property Act. Sections 37 and 38 of the FPA stipulate:
- The prenup must be a written agreement
- The prenup must be signed and acknowledged by each party separately
- Each party must be aware of the nature of the agreement
- Each party must understand that they are giving up their right to future claims
- Each party must sign the agreement voluntarily
In addition, each party must receive independent legal advice before signing the agreement. Although a lawyer does not need to witness the acknowledgement, they do need to ensure their client has a full understanding of the prenup. If you can demonstrate that these formal requirements were not met at the time of creation, the prenup may not be legally binding.
If your prenup is formally valid, you may still be able to challenge it if:
- There was duress or undue influence involved during signing (e.g., you were forced or threatened to sign)
- Unconscionable conduct occurred (e.g., hiding assets or failing to disclose full financial information)
- A signing party could not understand the agreement in full
Proving unconscionability, undue influence, or lack of capacity will be the responsibility of the challenging party. This process is often difficult and will require significant evidence. It is not enough to simply argue that the division of property during your divorce is going to be unequal, as this is often the purpose of prenups in the first place.
An experienced family lawyer will be able to assess how you should go about challenging your prenup. They can help you gather evidence and present it in court to argue why your agreement should be set aside.
Do You Want to Challenge Your Prenuptial Agreement? Contact Verhaeghe Law’s Family Lawyers Today
Although challenging a prenup in Alberta is possible, success will depend on serious procedural or fairness issues. Because courts generally want to uphold legal agreements, it is important that you seek proper legal advice before signing or seeking to challenge your prenup.
At Verhaeghe Law, our Edmonton divorce lawyers can help you navigate your divorce or separation, especially if you believe the terms to be unfair or invalid. Contact our legal team for a confidential consultation today. You can call our Edmonton office at (587) 410-2500 or contact us online now. We help clients across Alberta.