Prenuptial agreements are legally recognized and enforceable in Saskatchewan under The Family Property Act, SS 1997, c F-6.3. These are commonly referred to as “interspousal contracts”, and may be entered into before or during the marriage .

The Family Property Act, s. 38(4) provices:
“An interspousal contract may: (a) provide for the possession, ownership, management or distribution of family property between the spouses at any time, including, but not limited to, the time of:

(i) separation of the spouses; (ii) dissolution of the marriage; or (iii) a declaration of nullity of marriage; (b) apply to family property owned by both spouses and by each of them at or after the time the contract is made; and

(c) be entered into by two persons in contemplation of their commencing to cohabit in a spousal relationship, but is unenforceable until after they commence cohabitation.”

Such agreements can override the default property division rules that would otherwise apply under the Act in the event of separation, divorce, or death.

What makes a prenuptial agreement enforceable in Saskatchewan?

Saskatchewan requires that interspousal contracts comply with both formal execution requirements and substantive fairness considerations.

1. Formal Requirements (Mandatory Acknowledgment and Witnessing)

To be valid and enforceable, an interspousal contract must:

• Be in writing;
• Be signed by both spouses;
• Be witnessed by someone other than the other spouse;
• Include an acknowledgment by each spouse, made in front of a lawyer, stating that:
  • The spouse is aware of the nature and effect of the contract;
  • The spouse is signing it freely and voluntarily, without duress or undue influence.

The Family Property Act, s. 38(1)(c) and (2) provide:
“(c) in which each spouse has acknowledged, in writing, apart from the other spouse, that he or she:

(i) is aware of the nature and the effect of the contract; (ii) is aware of the possible future claims to property he or she may have pursuant to this Act; and

(iii) intends to give up those claims to the extent necessary to give effect to the contract.

(2) A spouse shall make the acknowledgment mentioned in subsection (1) before a lawyer other than the lawyer:

(a) acting in the matter for the other spouse; or (b) before whom the acknowledgment is made by the other spouse.”

Each spouse must receive independent legal advice (ILA), and the lawyer must sign a certificate to that effect. If these steps are not followed, the agreement may be declared unenforceable, even if both parties signed it.

2. Independent Legal Advice (Mandatory)

Both spouses must obtain ILA from separate lawyers. The lawyer’s certificate serves as proof that the spouse understood the agreement and signed voluntarily. Without this, the court may refuse to enforce the agreement, regardless of whether the terms are fair.

3. Disclosure and Procedural Fairness

Although not spelled out in the statute, courts in Saskatchewan have emphasized the importance of full and frank disclosure and the absence of coercion or undue pressure. These are part of the broader “voluntariness” standard and are key factors in determining enforceability.

Unique Issues in Saskatchewan

Family Property and Contracting Out

Without an interspousal contract, Saskatchewan uses a presumptive 50/50 division of family property, which includes most property acquired during the marriage, regardless of title. There are limited exclusions (e.g., inheritances or gifts if not co-mingled), but these are narrowly interpreted.

Under a valid interspousal contract, spouses can:

• Exclude certain property from division;
• Alter the equal division rule;
• Define how increases in value of excluded property will be treated;
• Protect pre-marital assets or business interests.

Spousal Support Provisions

Although interspousal contracts primarily deal with property, they may also include clauses addressing spousal support. Courts have jurisdiction to review support terms under the Family Maintenance Act and may set them aside if they are unconscionable or if there has been a significant change in circumstances.

Support waivers in Saskatchewan are not automatically binding and are assessed in context.

Timing and Best Practices

• Sign well before the wedding (if applicable) to avoid allegations of duress.
• Exchange full financial disclosure and retain a record of it.
• Ensure that each party has separate legal counsel and that the acknowledgment certificate is properly completed and attached.

Failure to follow these steps may result in partial or total invalidation of the agreement.

Key Takeaways

• Saskatchewan uses the term interspousal contract for prenups.
• The agreement must be in writing, signed, witnessed, and include lawyer-certified acknowledgments for each party.
• Independent legal advice is mandatory and must be obtained from separate lawyers.
• Courts respect valid contracts but will scrutinize the process to ensure the agreement was entered into freely, voluntarily, and with full 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.