In Prince Edward Island (PEI), prenuptial agreements, formally referred to as marriage contracts, are legally recognized and enforceable under the Family Law Act, RSPEI 1988, c F-2.1. These agreements allow couples who are married or intend to marry to define their rights and obligations concerning property division, spousal support, and other related matters.

Statutory Authority

The authority for marriage contracts in PEI is established in Section 51 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 parenting time, decision-making responsibility, or contact with their children;

(c.1) the payment of the expenses of a child’s prenatal care and birth;

(c.2) funeral expenses of the child or mother; and

(d) any other matter 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 55 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.

2. Full Financial Disclosure

While not explicitly mandated in the Act, failure to disclose significant assets, debts, or liabilities can be grounds for setting aside the contract.

3. Independent Legal Advice

Although not a statutory requirement, obtaining independent legal advice is strongly recommended. The absence of such advice may influence a court’s decision regarding the fairness and enforceability of the agreement.

4. Unconscionability and Fairness

Courts retain the discretion to set aside a marriage contract if it is found to be unconscionable or grossly unfair.

Section 55 of the Family Law Act provides as follows:

55. (1) In the determination of a matter respecting the education or moral training of a child the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child, in accordance with the Children’s Law Act.

(2) A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

(3) A provision in a domestic contract made before this section comes into force whereby any right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another.

(4) A court may, on application, set aside a domestic contract or a provision in it

(a) if a party failed to disclose to the other significant assets, or significant debts or other

liabilities, existing when the domestic contract was made;

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

(5) Subsection (4) applies despite any agreement to the contrary.”

What Can a Prenuptial Agreement Cover?

According to Section 51 of the Family Law Act, a marriage contract in PEI 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;
Payment of expenses related to a child’s prenatal care and birth;
Funeral expenses of the child or mother;
Other matters in the settlement of their affairs, such as debt division or financial management rules.

However, Section 51(1)(c) explicitly prohibits agreements from addressing parenting time, decision-making responsibility, or contact with children. These matters are always subject to the court’s determination based on the best interests of the child.

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 PEI have the discretion to set aside a marriage contract, or specific provisions within it, in the following circumstances:

Significant financial non-disclosure;
A party did not understand the nature or consequences of the agreement;
The contract is unconscionable or grossly unfair.

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 Prince Edward Island under Section 51 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.