When people think about relationship contracts, they usually picture prenups — something you sign before getting married. But life doesn’t stop changing once you’ve said “I do.” Maybe you started a business, inherited a property, or blended a family. Most often, the need for a post-nuptial agreement occurs when certain circumstances dramatically change for the couple.

A post nup is a family law agreement that sets out clear rules for how to handle finances, marital assets, responsibilities, and future changes in the unlikely event of a future divorce or a spouse’s death. If you’re considering a post-nuptial agreement in Alberta, speaking with a family lawyer is the best way to understand how these agreements work and how they can protect you and your spouse.

Marriage Agreements

Marriage agreements, including post-nuptial agreements, are legal contracts that outline the rights and responsibilities of spouses. This document is there to help protect both individual and shared assets such as homes, investments, inheritance, or family businesses.

Think of them like a partnership agreement for your marriage. Just as business partners set out clear rules for how to handle finances, responsibilities, and future changes, marriage agreements address the same for couples.

The main difference between a pre nuptial agreement and post nuptial agreement is timing: a prenup is signed before marriage, while a postnup is created afterward. But both have the same goal. With it, you and your spouse are empowered to make decisions about how your assets are shared in the case of a marriage breakdown. It’s not left to the Alberta courts to decide during divorce proceedings, and it can even save one spouse from inheriting another’s debt rather than just the assets they acquired.

What Can Be Included in a Post Nuptial Agreement

In Alberta, a post nuptial agreement can protect a wide range of assets, provided they are clearly defined, fully disclosed, and agreed upon by both spouses. One of the most common categories is property owned before marriage. Certain assets, such as real estate, savings accounts, vehicles, investments, or business interests that one spouse brought into the relationship, can be identified as separate property, ensuring they remain outside any future division. This allows each spouse to retain ownership of what they owned before getting legally married, avoiding disputes later on.

Inheritances and gifts received by one spouse during the marriage can also be protected through a post-nup. Under Alberta law, these types of assets are typically considered exempt from property division. Still, problems often arise when they are used to purchase joint property or are mixed with shared finances. A well-drafted agreement can specify that large inheritances or gifts remain separate, even if their value increases over time.

Business interests are another critical area of protection. If one or both spouses own a business, a postnup can define who owns what, how profits are divided, and what happens to the company if the marriage ends. This helps prevent disruption to business operations and shields the business from potential claims or forced liquidation. For entrepreneurs, professionals, and small business owners, this clarity is often essential for maintaining stability.

Investments and savings accounts, such as RRSPs, TFSAs, or pensions, can also be outlined in the post nup. It can state whether each spouse will keep their own accounts and how growth or contributions during the marriage are handled, so financial planning for retirement or future goals remains predictable, even in the event of separation. This often gives individuals a sense of financial security.

The marital property, such as the matrimonial home, rental properties, vacation properties, or farmland, can all be addressed in the agreement. However, Alberta’s Family Property Act gives special treatment to the family home in divorce settlements, meaning that even if one spouse owned it before marriage, it may be considered joint property if it becomes the primary residence.

Personal property such as jewelry, family heirlooms, collectibles, or art can also be included. These items often carry both sentimental and financial value, so documenting them in the agreement prevents future conflict over ownership. Similarly, if one spouse is a beneficiary of a trust or expects a future inheritance, a post nup can make it clear that these significant assets will remain separate and are not to be divided.

A post-nuptial agreement can also provide protection. It can specify that each spouse is responsible for their own financial obligations, including credit card, student loan, and business debts. This provision prevents one partner in a married couple from becoming legally or financially entangled in the other’s borrowing or business risks unfairly.

Child Custody and Support

In Alberta, post nuptial agreements may include provisions that address child custody and support. However, these plans and preferences are not legally final or binding when it comes to child custody or support. Under Canadian family law, the courts always retain the authority to determine these matters based on the best interests of the child at the time of separation or dispute.

This means that even if a post nuptial agreement specifies specific arrangements for custody, access, or child support, a court can override those terms if they no longer serve the child’s welfare or if the agreed support amount falls below what is required under the Federal or Alberta Child Support Guidelines.

The child’s right to adequate financial support cannot be waived or limited by parental agreement. For that reason, a post-nup can serve as a helpful framework for cooperation and understanding between parents, but it cannot replace a court’s assessment of what is fair and appropriate for the child.

In terms of spousal support, post-nuptial agreements can set out whether support will be paid, in what amount, and for how long if the marriage ends. However, spousal support clauses must be drafted carefully. Courts can also override such agreements if they are unconscionable or no longer fair at the time of separation.

Creating Legally Binding Post Nuptial Agreements

To create a legally binding post nuptial agreement in Alberta, both spouses must carefully follow the legal requirements set out under the Family Property Act. The process begins with mutual consent. The parties agree to the terms of the agreement without any pressure, coercion, or undue influence. A legally valid post-nup cannot result from one spouse feeling forced to sign or from a lack of full understanding of what they are agreeing to. Genuine consent is the foundation of enforceability.

The agreement must also be in writing and signed by both spouses. Unlike casual arrangements or verbal promises, only a written document can meet Alberta’s legal standards for property agreements between married spouses. The written form ensures there is a clear, permanent record of what each person agreed to, which is critical if the agreement is ever reviewed by a court.

Another essential requirement is full financial disclosure. Each spouse must provide an honest and complete picture of their finances, including all assets, debts, income, and liabilities. To ensure the fairness and enforceability of a post nuptial agreement, both spouses should fully disclose their financial assets, liabilities, and income. If one person hides information or undervalues property, the agreement may later be challenged and set aside. Full transparency at the time of signing protects both parties and ensures that each makes an informed decision.

Before signing, each spouse must meet with their own lawyer, separate from the other’s counsel, to review the agreement. This independent legal advice is essential! It is a legal requirement and ensures that both spouses fully understand the rights they are giving up and the legal consequences of what they are signing.

Finally, the agreement must be fair and reasonable at the time it was made. Even if all formalities are met, a court can set aside a post-nuptial agreement if it is clearly unjust or if circumstances have changed in ways that make it oppressive to enforce. For that reason, couples should revisit their agreement after major life changes such as having children, buying property, or starting a business, to ensure it still reflects their intentions.

Signs You May Need a Post Nuptial

While every situation is unique, the following circumstances often indicate that a post-nup would be beneficial:

• A major financial change after marriage: a post nuptial agreement can clarify ownership and protect assets if one spouse starts a business, receives an inheritance, or acquires valuable property.
• One spouse stops working to support the family: a post-nuptial agreement can ensure that financial contributions and sacrifices are recognized when a partner leaves work to care for children or support the other’s career.
• Unequal debts or financial risk: a post nuptial agreement can protect one spouse from the other’s substantial debt, high-risk investments, or business liabilities.
• Second marriages and blended families: a post-nuptial agreement helps safeguard children’s inheritance rights and family property from previous relationship or previous marriage.
• No prenuptial agreement was signed: a post nuptial agreement can provide similar legal protection for couples who married without a prenup.
• Ownership of shared property or joint investments: a post nuptial agreement can outline how jointly owned property, businesses, or investments will be divided if the marriage ends.
• Significant lifestyle or career changes: a post nuptial agreement is useful after moving provinces, retiring, or shifting financial priorities.

However, there are also situations where post-nuptial agreements might not be the right fit. If the relationship is already in serious conflict or close to breaking down, it may be too late for a cooperative agreement; in this case, a separation agreement could be more appropriate.

Likewise, if one spouse is unwilling to provide full financial disclosure, the resulting agreement will likely not be enforceable. A postnup may create tension if it is introduced suddenly or without open discussion, leading one partner to feel pressured or mistrustful.

If a couple’s finances are already simple, with few assets or debts, and both parties are comfortable sharing everything equally, the cost and effort of creating a post-nuptial agreement may outweigh the benefits.

A post-nuptial agreement is most useful when both spouses are cooperative, transparent, and seeking fairness. If you are thinking of drafting one, get in touch with our experienced family lawyers, and we will ensure the process is transparent and tailored to your specific situation.

We can help you draft or review a prenuptial, post nuptial, or other family law agreement that meets Alberta’s legal requirements, protects your interests, and gives you the peace of mind you deserve.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Legal Notice  for more details.