Prenuptial agreements are legally recognized and enforceable in Alberta under the Family Property Act, S.A. 2003, c. F-4.7 . These agreements are formally called “family property agreements” and may be entered into before or during a marriage or adult interdependent partnership.

The relevant provisions are found in Part 1, Division 2 of the Family Property Act, which explicitly allows spouses and adult interdependent partners to agree on how property will be divided upon separation or death.

The Family Property Act, s. 37(1) provides:
“Part 1 does not apply to property that is owned by either or both spouses or adult interdependent partners or that may be acquired by either or both spouses or adult interdependent partners, if, in respect of that property, the spouses or adult interdependent partners have entered into a subsisting written agreement with each other that is enforceable under section 38 and that provides for the status, ownership and division of that property.”

Prenups in Alberta can override the default statutory rules that would otherwise apply under the Act.

What makes a prenup enforceable in Alberta?

Prenuptial agreements in Alberta are subject to strict formal requirements under the Family Property Act. These are mandatory and failure to comply may render the agreement invalid or unenforceable, regardless of the parties’ intentions.

1. Formal Requirements (Mandatory Certificates)

To be enforceable, the agreement must:

• Be in writing and signed by both parties;
• Contain a certificate of independent legal advice (ILA) for each party;
• The ILA certificate must confirm that:
  • The party signing the agreement understands it;
  • The party was not under duress;
  • The lawyer explained the nature and effect of the agreement.

These requirements are set out in section 38 of the Family Property Act.

The Family Property Act, s. 38(1) provides:
“(1) An agreement referred to in section 37 is enforceable if each party to the agreement has acknowledged, in writing, apart from the other party

                             (a)    that the party is aware of the nature and the effect of the agreement,

                             (b)    that the party is aware of the possible future claims to property the party may have under this Act and that the party intends to give up these claims to the extent necessary to give effect to the agreement, and

                             (c)    that the party is executing the agreement freely and voluntarily without any compulsion on the part of the other party.

(2)  The acknowledgement referred to in subsection (1) shall be made before a lawyer other than the lawyer acting for the other party or before whom the acknowledgement is made by the other party.”

The certificate must be attached to the agreement, and the witnessing must be done individually (i.e., each party must sign before their own lawyer).

2. Independent Legal Advice

Unlike other provinces where ILA is optional but recommended, Alberta requires that each party obtain ILA for the agreement to be enforceable. The lawyer must be qualified to practice in Alberta and not act for both parties.

3. Disclosure and Bargaining Power

Although not expressly required by the statute, courts have emphasized that full and frank financial disclosure is necessary to ensure meaningful consent and informed decision-making. Unequal bargaining power, pressure to sign, or lack of understanding may all support a finding that the agreement should be set aside.

Unique Issues in Alberta

Property Division: Contracting Out of the Act

Without a prenup, Alberta applies a default 50/50 regime for property acquired during the marriage, subject to certain exemptions (e.g., gifts, inheritances, property owned before the relationship). The value of exempt property may be divisible if it has been used jointly or increased in value during the relationship.

A properly executed prenuptial agreement can:

• Define how exempt property will be treated;
• Prevent division of business assets or future increases in property value;
• Allow customized property or debt-sharing regimes.

Spousal Support

Prenuptial agreements may also address spousal suppor. Courts retain discretion to review and possibly override spousal support waivers if they are unconscionable or if there has been a significant change in circumstances.

Timing of Signing

If the agreement is signed too close to the wedding or under pressure, it may be challenged. While Alberta courts are generally deferential to certified agreements, procedural fairness still matters.

Best practice is to sign well in advance of the wedding date (ideally 1–2 months), with clear disclosure and separate legal advice.

Key Takeaways

• Alberta requires independent legal advice and lawyer-signed certificates for both parties: this is mandatory, not optional.
• Agreements that meet the formal requirements are generally binding and override the Family Property Act.
• Courts will examine whether the agreement was entered into freely and fairly, with adequate disclosure and understanding.

You’re Invited to Call or E-Mail!

If you’re considering a prenuptial agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at (800) 837-0460 or email us using our contact form here. We can help you prepare an Ontario agreement.