In Nova Scotia, prenuptial agreements—formally referred to as marriage contracts—are legally recognized and enforceable under the Matrimonial Property Act, R.S.N.S. 1989, c. 275. These agreements allow couples to define their rights and obligations concerning property division, spousal support, and other related matters.

Statutory Authority

The authority for marriage contracts in Nova Scotia is established in the Matrimonial Property Act. Section 23 permits spouses to enter into a marriage contract that may address their respective rights and obligations:

“A man and a woman may enter into an agreement, to be known as a marriage contract, before their marriage or during their marriage while they are cohabiting, in which they agree on their respective rights and obligations

(a) under the marriage;

(b) upon separation;

(d) upon the death of either spouse.”

Section 24 of the Matrimonial Property Act specifies the formal requirements for such agreements. It states:

“A marriage contract or a separation agreement is void unless it is in writing and is signed by the parties and witnessed.”

Section 29 of the Matrimonial Property Act grants the court discretion to vary the terms of a marriage contract if any term is unconscionable, unduly harsh, or fraudulent. It provides:

“Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit”

These provisions collectively provide the legal framework for the creation and enforcement of prenuptial agreements in Nova Scotia.

Requirements for Enforceability

For a prenuptial agreement to be enforceable in Nova Scotia, it must meet the following criteria:

Written and Signed: The agreement must be in writing, signed by both parties, and witnessed.
Voluntary Consent: Both parties must enter into the agreement voluntarily, without coercion or undue influence.
Full Financial Disclosure: Each party should provide complete and honest disclosure of their financial situation. Failure to do so may render the agreement unenforceable.
Independent Legal Advice: While not a strict legal requirement, obtaining independent legal advice is strongly recommended. Courts may set aside provisions of the agreement if a party did not receive independent legal counsel and the application of the provision would be inequitable.

What Can a Prenuptial Agreement Cover?

A prenuptial agreement in Nova Scotia can address various matters, including:

Division of Property: Couples can agree on how to divide property acquired before and during the marriage, effectively opting out of the equal division rule under the Matrimonial Property Act.
Spousal Support: The agreement can specify the amount and duration of spousal support or waive it altogether.
Debt Responsibility: It can outline how debts will be handled between the parties.

However, it’s important to note that provisions related to child custody, access, and support are not binding. Courts retain the authority to make decisions in the best interests of the child, regardless of any agreement between the parties.

Importance of Independent Legal Advice

While not mandatory, obtaining independent legal advice is crucial. Courts may set aside provisions of a prenuptial agreement if a party did not receive independent legal counsel and the application of the provision would be inequitable. This underscores the importance of each party understanding the agreement fully and entering into it voluntarily.

Conclusion

Prenuptial agreements in Nova Scotia are valuable tools for couples wishing to define their financial and property arrangements. To ensure enforceability, it’s essential to have the agreement in writing, signed, and ideally, for both parties to obtain independent legal advice. While these agreements can cover various aspects of a couple’s financial relationship, they cannot conclusively determine matters related to child custody or support. As with any legal contract, fairness, transparency, and informed consent are key to a prenuptial agreement’s validity.

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.