In Newfoundland and Labrador, prenuptial agreements, referred to in legislation as marriage contracts, are explicitly permitted under Part IV of the Family Law Act, RSNL 1990, c F-2. These agreements allow individuals who are married or intend to marry to set out their rights and obligations during the marriage or upon separation, annulment, dissolution, or death.

Statutory Authority

Marriage contracts are governed by Section 62 of the Family Law Act, which states:

“Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including

                 (a)         ownership in or division of property;

                 (b)         support obligations;

                 (c)         the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

                 (d)         other matters in the settlement of their affairs.”

This provision provides clear statutory authority for prenuptial agreements (marriage contracts) in the province.

Requirements for Validity and Enforceability

To be enforceable under Section 65 of the Family Law Act, a marriage contract must:

• Be in writing;
• Be signed by both parties; and
• Be witnessed.

Additional considerations impacting enforceability include:

1. Voluntariness

Courts may set aside a marriage contract if a party did not enter into it voluntarily or if they did not understand the nature or consequences of the agreement (s. 66(4)(b)).

2. Full Financial Disclosure

Though not explicitly mandated in the Act, failure to disclose significant assets, debts, or liabilities is grounds for setting aside the contract under s. 66(4)(a).

3. Independent Legal Advice

While not required by the statute, obtaining legal advice is strongly recommended. The lack of independent legal advice may factor into a finding that the agreement was unconscionable or misunderstood by a party.

4. Unconscionability and Fairness

Per section 66(4)(c), courts retain the discretion to set aside a marriage contract “in accordance with the law of contract,” including where it is unconscionable, grossly unfair, or made under duress or misrepresentation.

Section 66(4) of the Family Law Act provides that:

“A court may, on application, set aside a domestic contract or a provision in it

             (a)  where a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

             (b)  where a party did not understand the nature or consequences of the domestic contract; or

             (c)  otherwise in accordance with the law of contract.”

What Can a Prenuptial Agreement Cover?

According to section 62 of the Family Law Act, a marriage contract in Newfoundland and Labrador can include terms addressing:

• Ownership or division of property (pre-marital, marital, business, real estate, etc.);
• Spousal support obligations, including the amount, duration, or waiver of support;
• Education and moral training of children;
• Other matters in the settlement of their affairs, such as debt division or financial management rules.

However, section 62(c) explicitly prohibits agreements from addressing custody or access to children. These matters are always subject to the court’s determination based on the best interests of the child, per section 66(1) of the Family Law Act.

Common Uses for Marriage Contracts

Marriage contracts are frequently used in the following situations:

• Second marriages, to protect inheritance rights or obligations to children from a prior relationship;
• Disparity in premarital assets, where one party owns a business, home, or investment portfolio;
• Farm or family property, to protect intergenerational assets;
• Protecting inheritances or gifts, especially if received or expected during the marriage;
• Clarifying debt responsibility, particularly if one party enters the marriage with significant liabilities.

Setting Aside a Marriage Contract

Courts in Newfoundland and Labrador have broad discretion under section 66(4) of the Family Law Act to set aside a marriage contract, or specific provisions within it, in the following circumstances:

• (a) Significant financial non-disclosure;
• (b) A party did not understand the nature or consequences of the agreement;
• (c) On general principles of contract law (e.g., duress, misrepresentation, unconscionability).

Even where both parties had legal advice and full disclosure was provided, a contract may be varied or disregarded if circumstances at the time of enforcement make its application unjust.

Conclusion

Marriage contracts (prenuptial agreements) are expressly authorized in Newfoundland and Labrador under section 62 of the Family Law Act. These agreements allow couples to define their financial rights and responsibilities before or during marriage, including how assets and support will be dealt with upon separation or death.

To ensure enforceability:

• The agreement must be in writing, signed, and witnessed;
• Full financial disclosure should be exchanged;
• Each party should obtain independent legal advice;
• The agreement should avoid unfair, coercive, or one-sided terms.

When properly executed, a marriage contract can offer clarity, certainty, and protection to both parties, and prevent costly disputes in the future.

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.