In New Brunswick, prenuptial agreements, formally known as marriage contracts, are specifically authorized under the Marital Property Act. Section 34 of the Act states:

“Two persons may enter into an agreement, before their marriage or during their marriage while cohabitating, in which they agree on their respective rights and obligations under the marriage or upon separation or the annulment or dissolution of the marriage or upon death, including,

(a) ownership in or division of property;

(b) support obligations;

(d) but not the right to custody of or access to their children.”

This section provides the statutory foundation for couples in New Brunswick to create enforceable agreements addressing their financial affairs during marriage or in the event of a breakdown.

What makes a prenuptial agreement enforceable in New Brunswick?

In order to be enforceable, a marriage contract in New Brunswick must satisfy both formal and substantive requirements.

1. Written and Signed

The agreement must be in writing, signed by both parties.

2. Voluntary and Informed Consent

Each party must enter into the agreement freely, without coercion, duress, or undue influence.

3. Full Financial Disclosure

While not required by statute, full and frank disclosure of each party’s financial circumstances is essential. Without it, the agreement is vulnerable to challenge on fairness grounds.

4. Independent Legal Advice (ILA)

Section 41 of the Marital Property Act allows a court to disregard a provision of a marriage contract if one party did not receive independent legal advice and enforcing the provision would be inequitable. It states:

“The Court may disregard any provision of a domestic contract

(a) if the domestic contract was made before the coming into force of this Part and was not made in contemplation of the coming into force of this Part; or

(b) if the spouse who challenges the provision entered into the domestic contract without receiving legal advice from a person independent of any legal advisor of the other spouse;

where the Court is of the opinion that to apply the provision would be inequitable in all the circumstances of the case.”

What can a prenuptial agreement cover?

Under section 34 of the Marital Property Act, a marriage contract may address:

Ownership or division of property (including matrimonial or pre-marital assets);
Spousal support obligations (e.g., fixed amounts, waivers, or limitations);
Any other matter in the settlement of their affairs, except:
Custody or access, which cannot be predetermined by agreement.

Agreements can apply to both property acquired before and during the marriage. They are also commonly used to protect family businesses, inheritances, farms, or second-marriage financial arrangements.

Relationship to Statutory Property Division

In the absence of a valid marriage contract, the Marital Property Act presumes equal division of marital property upon separation or death. However, section 34 explicitly permits spouses to opt out of this default by agreement.

This allows parties to:

Designate specific assets as excluded;
Alter the share each party receives on separation;
Specify how property will be managed or disposed of during marriage.

The contract must clearly identify the property in question and be consistent with public policy and basic fairness.

Independent Legal Advice and Court Scrutiny

While courts in New Brunswick generally uphold valid agreements, they retain discretion under section 41 of the Marital Property Act to override specific provisions if:

There was no independent legal advice; and
Applying the term would result in an inequitable outcome.

This reinforces the importance of:

Separate legal representation for each party;
Comprehensive financial disclosure;
Avoiding last-minute agreements signed under time pressure.

Child Support and Parenting Cannot Be Determined in Advance

As confirmed in section 34(d) of the Marital Property Act, marriage contracts cannot deal with the right to custody of or access to children.

Courts will also disregard clauses that purport to waive or limit child support, as support is the right of the child and determined by the child’s best interests and statutory guidelines at the time of need.

Conclusion

Marriage contracts (prenuptial agreements) are fully recognized in New Brunswick under section 34 of the Marital Property Act. They allow spouses to opt out of the default 50/50 division of property and define their own spousal support and financial arrangements.

To ensure enforceability:

Agreements should be in writing and signed;
Each party should receive independent legal advice;
Full financial disclosure should be exchanged;
The terms must be fair and not unconscionable.

When carefully drafted, a prenuptial agreement can provide clarity, reduce conflict, and ensure both parties’ expectations are respected in the event of separation or death.

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.