Yes, you can include a spousal support waiver in a New Brunswick prenuptial agreement. However, if the waiver leaves one spouse in severe financial hardship, a judge at the Court of King’s Bench can overturn it. To make it legally binding, both parties must receive independent legal advice.
When planning a future together, many couples wonder if they can agree in advance not to pay spousal support if the marriage ends. In New Brunswick, a prenuptial agreement (legally known as a domestic contract) can certainly include these waivers.
Whether you live in Moncton, Fredericton, or Saint John, having clear financial boundaries provides peace of mind. However, Canadian family law places strict limits on these waivers to prevent extreme unfairness. 📍
Step-by-Step Process in New Brunswick
Drafting a domestic contract that holds up in court requires careful steps. A judge will closely examine how the agreement was made, especially if it involves giving up future financial support.
Step 1: Complete Financial Disclosure
Before any contract is signed, both partners must be entirely honest about their finances. You must exchange documents showing all your current assets, debts, and income. 📄
If one person hides a bank account or a significant debt, the Court of King’s Bench may later throw out the entire agreement, including the spousal support waiver.
Step 2: Hiring a Law Firm to Draft the Contract
Next, you should hire a local lawyer to draft the domestic contract. The language must be incredibly precise to meet the standards of the federal Divorce Act and provincial laws.
Generic templates downloaded from the internet rarely hold up in a Canadian court, particularly when dealing with complex issues like waiving spousal support.
Step 3: Obtaining Independent Legal Advice (ILA)
This is the most critical step. Your partner cannot use your lawyer. They must take the draft agreement to a completely different law firm to receive Independent Legal Advice (ILA). ⚔
The second lawyer will explain what giving up spousal support actually means for their future. The lawyer will then sign a Certificate of ILA, proving your partner understood the contract and signed it willingly.
How Much Does it Cost in New Brunswick?
Creating a legally secure domestic contract is an investment in your future. While costs vary based on complexity, you can expect the following average fees:
- Drafting the Agreement: Hiring a family lawyer to negotiate and draft the contract generally costs between $1,500 and $3,500 CAD.
- Independent Legal Advice (ILA): The partner who did not draft the agreement will usually pay between $400 and $800 CAD for their own lawyer’s review and signature.
- Financial Appraisals: If you own a business or complex assets, hiring an appraiser can add $500 to $2,000 CAD to the process.
How Long Does the Process Take?
Properly negotiating and drafting a prenuptial agreement usually takes 4 to 8 weeks. ⏱
It is strongly advised to finalize the contract at least three to four months before your wedding date. Rushing the process just days before the ceremony can lead to claims of duress, which could invalidate the agreement later.
Frequently Asked Questions (FAQ)
Can a judge override our spousal support waiver?
Yes. If the circumstances at the time of your separation are drastically different from when you signed the contract (for example, if one spouse became severely disabled), a judge can override the waiver to prevent unconscionable hardship.
Does a waiver cover child support too?
Absolutely not. In Canada, child support is the legal right of the child. You cannot waive or negotiate away your obligation to pay child support in any domestic contract.
What if my spouse makes significantly more money later?
If your agreement has a strict, valid spousal support waiver, a mere increase in income does not automatically invalidate it. However, if the financial imbalance is extreme and leaves one spouse impoverished, the court may intervene.
Can common-law couples use a support waiver?
Yes. Common-law couples in New Brunswick can create a cohabitation agreement that includes waivers for spousal support, provided it follows the same rules of full financial disclosure and independent legal advice.
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