You have a Prenup and Are Getting a Divorce: Now What?

The purpose of a prenuptial agreement is to plan for the division of your assets in the event of either death or divorce. When it comes to divorce, popular culture perpetuates a “winner takes it all” mythology; one spouse is awarded all the assets and the other loses everything. In most cases, this is simply untrue. This situation is precisely what a prenup protects both spouses against.

Prenups are valid for as long as you are married, unless you and your spouse have consented to an amendment or revocation. A properly negotiated and executed prenuptial agreement will be enforced by the courts in Alberta. However, if you are getting a divorce and are dissatisfied with your existing prenup agreement, you can challenge it but this will in most cases be difficult. 

What is the process of challenging my prenup?

If you want to challenge your prenup after your separation you will need to apply to the Alberta Court of Queen’s Bench as if there was no agreement, and ask the court for an order declaring the agreement to be invalid or unenforceable.

However, the burden of proof falls upon the person wanting to challenge the agreement. This means you will be required to prove to the court that you experienced oppression, pressure, or were a victim of misrepresentation or other vulnerabilities during the time at which you signed the prenup. Prenup agreements that have been prepared properly typically are accompanied by certificates and acknowledgments that specifically address these issues, so you may find the task of challenging the prenup on these grounds very difficult. Even if you received advice from your lawyer that the court would not likely uphold the agreement and you signed it anyway, the court will still uphold the agreement.

That being said, provisions in prenup agreements regarding spousal support are more easily challenged than provisions regarding property, especially when the relationship has lasted a long time and circumstances have changed drastically from what the parties were expecting that the agreement should be varied in some way. Again, the burden of proof lies with the party challenging the agreement and this can be quite difficult and expensive.

What evidence do I need to successfully challenge my prenup?

The evidence that you will need to challenge a prenup can include evidence of the following sorts of circumstances:

1. Lack of Independent Legal Advice:
   You signed your prenup agreement without independent legal advice;

2. A Mistake:
   You did not fully understand the nature or consequences of your agreement;

3. Coercion:
   Your spouse took advantage of your vulnerability, i.e., ignorance, need, or distress;

4. Unconscionableness:
   You signed a prenup agreement seriously unfair to you that would be unconscionable to enforce;

5. Duress:
   You were forced to enter into your prenup agreement when it was negotiated or executed;

6. False Information:
   You signed your prenup based on false information provided by your spouse;

7. Fraud:
   You signed your prenup but were unaware that your spouse misinterpreted what it was about, or;

8. Other circumstances that under the law would cause all or part of your prenup to be voidable.

What happens if I successfully challenge my prenuptial agreement in court?

The court can void specific terms of your prenup or set aside your entire agreement. However, if you do not manage to successfully challenge the agreement, it will stand.

What happens if I am getting a divorce and the judge overturns the prenup agreement?

If the family law judge overturns your prenup, the court will decide your case based upon the law applicable to cases where there is no agreement.  In general, the courts are required to divide assets acquired during the marriage fairly, which usually means equally.  There are occasions where a court may consider an unequal division if there is a persuasive reason, although this is rare.

What happens if we have a sunset clause and the date for review passed before getting a divorce?

A sunset clause specifies a time when the prenup will no longer be valid. Prenups should have periodic reviews, and sunset provisions may protect one of the spouses to the detriment of the other. If the date in your sunset clause has passed, then the court will apply the applicable family law to your case.

Summary

It is very difficult to challenge a prenuptial agreement if you and your spouse obtained independent legal advice and provided a full financial disclosure when you drafted and signed your prenup. If you are getting a divorce and have a prenuptial agreement that you believe is unfair, hiring a family lawyer can help you understand the laws, your rights and your options to challenge your prenup.

Calgary Family Law and Divorce Lawyer Charles Fair 

Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for over 30 years.

Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.