Prenuptial agreements across Canada and the United States
Select your province or state for a general overview of the rules. This is general information, not legal advice; check the official source and your lawyer for what applies to you.
Ontario: Marriage Contracts
In Ontario, prenuptial agreements are called "marriage contracts" under the Family Law Act. The Act says a domestic contract must be in writing, signed by the people bound by it and witnessed. Full financial disclosure of assets, debts and income is expected from both of you, and failing to disclose significant assets or debts is one of the grounds a court can use to set an agreement aside.
Independent legal advice is not always a strict legal requirement, but it is strongly recommended, and without it courts may be more willing to set an agreement aside. A marriage contract cannot waive or limit a child's right to support, but it can address spousal support, property division, and equalization rights. Some couples change or give up equalization rights; whether that suits you is a question for your own lawyer.
British Columbia: Marriage Agreements
British Columbia recognizes prenuptial agreements as "marriage agreements" under the Family Law Act. These must be in writing and signed by both parties. Financial disclosure matters, and courts generally expect both parties to have had meaningful opportunity to review and understand the agreement and its financial implications.
Independent legal advice is generally not required by statute, but it's strongly recommended and can make an agreement harder to challenge. Without documented ILA, a court may be more likely to set aside the agreement if it's challenged. A marriage agreement can address property division, spousal support, and the calculation of family property. It cannot limit or eliminate child support obligations.
Under BC's Family Law Act, unmarried couples who have lived in a marriage-like relationship for at least 2 years generally have property rights similar to married spouses, which is one reason couples there put an agreement in place. Your lawyer can explain how the defaults apply to you.
Alberta: Domestic Contracts
In Alberta, property agreements between spouses or intended spouses are made under the Family Property Act. They must be in writing and signed, and full financial disclosure is important so both of you understand the terms and their implications.
The Act has a specific formality: each of you acknowledges the agreement in writing before your own lawyer, apart from the other person, so in practice each of you needs a separate lawyer. Check the official source and your lawyer for the exact requirements. A domestic contract cannot predetermine or waive a child's right to support. It can, however, address spousal support, property division, and the treatment of specific assets.
What the agreement covers, including property either of you owned before the relationship, depends on how it is written. Your lawyer can explain the options.
Quebec: Marriage Contracts
In Quebec, a prenuptial agreement is called a "contrat de mariage" (marriage contract) and is governed by the Civil Code. Unlike the rest of Canada, Quebec's marriage contract must be notarised by a Quebec notary. This is not optional, without notarisation, the contract has no legal effect in Quebec.
This is especially significant because Quebec law defaults to the "partnership of acquests" regime, under which many assets acquired during the marriage are shared at the end of it. A notarised marriage contract can choose a different regime, but the family patrimony rules (for example the family residence and pension rights earned during the marriage) generally cannot be waived by contract. The agreement can address property division, the treatment of inheritances, debts, and business interests. The notary has a duty to advise both of you, and separate advice is still worth considering given how binding a notarised contract is.
If you marry without a notarised contract, Quebec's partnership of acquests rules apply automatically, along with the family patrimony rules.
California: Premarital Agreements
California premarital agreements are governed by the California Uniform Premarital Agreement Act (Family Code sections 1600 to 1617). The agreement must be in writing and signed by both parties. Among other things, the law looks at whether each party had at least 7 calendar days between first being given the final agreement and signing it.
Whether each party had independent legal counsel, or was advised to get it and waived it in writing, matters a great deal, and a spousal support term may not be enforceable if the person giving it up had no independent counsel. Full financial disclosure is expected. A premarital agreement cannot limit child support. It can address spousal support (with limits), property division and debt allocation.
California courts look closely at prenups, including whether the agreement was entered into voluntarily and with full disclosure. A California lawyer can tell you what the formalities mean for you.
New York: Prenuptial Agreements
New York prenuptial agreements are governed by the Domestic Relations Law. The agreement must be in writing and signed by both parties. Both signatures must be acknowledged before a notary public, which creates a formal record of execution.
Full financial disclosure is essential and should be documented. Independent legal advice is not statutorily required but is strongly recommended in practice, particularly if one party gives up significant rights. Courts can refuse to enforce an agreement they find unfair or unconscionable.
The agreement cannot limit or waive child support rights. It can address spousal support, property division, and asset allocation. The agreement usually needs to be clear about how it treats separate property, marital property and inheritances.
Texas: Premarital Agreements
Texas prenuptial agreements are called "premarital agreements" and are governed by Texas Family Code Chapter 4. The agreement must be in writing and signed by both parties. Unlike some states, Texas does not require witness or notary signatures by statute, though both are strongly recommended for clarity and proof of execution.
Texas does not strictly require financial disclosure by statute, but disclosure is essential for enforceability in practice. A court may refuse to enforce an agreement if one party can show they had no knowledge of the other party's assets or liabilities. The agreement cannot adversely affect a child's right to support. It can address spousal support, property division, and the treatment of community property.
Texas is a community property state. On divorce, a court divides community property in a way it considers "just and right" unless a valid agreement says otherwise. A prenup is the mechanism for opting out of community property rules or defining separate property boundaries.
Florida: Prenuptial Agreements
Florida prenuptial agreements are governed by the Florida Uniform Prenuptial Agreement Act (Florida Statutes 61.079). The agreement must be in writing and signed by both parties. The Florida statute does not itself require notarisation or witnesses, though they are commonly used to avoid later disputes about signing.
Full financial disclosure is important in practice. Courts are generally more likely to uphold an agreement if both parties had full knowledge of the other's financial position. The agreement cannot limit or waive child support rights. It can address spousal support, property division, and the characterisation of assets as separate or marital property.
Florida is an equitable distribution state, not a community property state. Without a prenup, the court divides marital assets equitably based on several factors; a prenup lets you set your own terms within the limits of the law.
Prepare your prenup terms
Four short steps about your assets, expectations and situation, then secure payment. We guide you through each term with prompts and examples, then organise your answers into a summary of your terms, for each of you to take to your own lawyer.