The Marital Property Act of New Brunswick dictates a default 50/50 division of wealth acquired during a marriage. However, a properly executed Marriage Contract allows you to legally override these default rules and customize exactly how your property will be divided.
When you get married in New Brunswick, you automatically enter into a financial partnership governed by the provincial Marital Property Act. This law is designed to protect both spouses by ensuring that the wealth built during the relationship is shared equally if the marriage ends.
While this 50/50 rule works well for many families, it might not be suitable if you already own a thriving business, have significant pre-marriage investments, or are expecting a large inheritance. Fortunately, the law provides a clear escape route. By signing a Domestic Contract (commonly known as a prenup), you can legally bypass the government’s standard rules and create a customized financial plan that works for you.
Step-by-Step Process to Override the Default Rules
In New Brunswick, the law heavily respects your right to contract out of the default property regime, provided you do it fairly. Here is the step-by-step process of how you can use a Marriage Contract to protect your specific assets.
Step 1: Understand the Default 50/50 Rule
Before you can opt out of the law, you must understand what you are giving up. Under the Marital Property Act, almost everything acquired between your wedding day and your date of separation is considered family property . This includes the family home, pensions, bank accounts, and even vehicles. Without a contract, the Court of King’s Bench will generally divide the total value of these assets equally between both spouses.
Step 2: Identify Assets You Want to Protect
You and your partner need to sit down and list which assets should be excluded from the standard 50/50 split. For example, if you own a home in Fredericton before the marriage, the law typically states that if you both live in it, it becomes a “marital home” subject to equal division. You can use a contract to explicitly state that this specific house remains 100% your separate property.
Step 3: Draft a Custom Domestic Contract
Your family lawyer will draft a formal Marriage Contract that directly references the Marital Property Act and explicitly states that sections of the Act will not apply to your marriage. The contract must carefully define what constitutes “separate property” and what will be considered “joint property” going forward.
Step 4: Execute with Financial Transparency
To ensure the contract successfully overrides the Act without being challenged later, both parties must provide full financial disclosure. You must exchange detailed lists of your current net worth, including debts and tax obligations to the CRA. After reviewing the terms, both spouses must receive Independent Legal Advice (ILA) before signing the document in front of a witness.
Default Law vs. Custom Marriage Contracts
Here is a clear comparison of how the standard law treats your assets versus what you can achieve with a custom prenup:
| Asset Scenario | Under the Marital Property Act (Default) | With a Marriage Contract (Custom) |
|---|---|---|
| The Marital Home | Divided 50/50, regardless of who bought it or whose name is on the land title. | Can remain 100% the property of the original owner, with no payout required to the spouse. |
| Business Growth | Any increase in the value of your private business during the marriage is split equally. | You can ring-fence the business, keeping all future growth and shares completely separate. |
| Marital Debts | Joint debts and credit lines accumulated for the family are generally shared equally. | You can specify that one spouse is solely responsible for specific debts or student loans. |
How Much Does it Cost in New Brunswick?
Drafting a contract to opt out of the Marital Property Act is a highly customized process. Generally, as of April 2026, the costs are as follows:
- Custom Drafting Fees: A skilled New Brunswick family lawyer will usually charge between $1,500 CAD and $3,500 CAD to draft a comprehensive agreement that protects complex assets.
- Independent Legal Advice: The secondary spouse will pay roughly $500 CAD to $1,200 CAD to have their own lawyer review the proposed terms.
- Professional Appraisals: To properly list your assets, you may need to spend $400 CAD to $1,500 CAD to appraise real estate or corporate shares before signing.
How Long Does the Process Take?
Because opting out of provincial property laws is a major financial decision, the drafting and negotiation process should never be rushed. Gathering tax returns, consulting with lawyers, and finalizing the wording usually takes 2 to 3 months. Attempting to force an agreement a few days before a wedding is highly discouraged and legally risky.
Frequently Asked Questions (FAQ)
Can we opt out of spousal support under the Act?
Yes. While the Marital Property Act handles assets, spousal support can also be addressed in your contract. You can legally agree to limit or completely waive spousal support, provided the waiver does not leave one partner completely impoverished and reliant on government assistance.
What happens to assets not mentioned in the contract?
If your Marriage Contract only protects specific items (like a business) and stays silent on everything else, any unmentioned assets acquired during the marriage will automatically fall back under the default rules of the Marital Property Act and be divided 50/50.
Does a Cohabitation Agreement override the Act?
If you are living together but not legally married, the Marital Property Act generally does not apply to you anyway. However, if you sign a Cohabitation Agreement and later get married, that agreement automatically becomes a Marriage Contract and will override the Act.
Can we write the contract ourselves to save money?
You can technically write a contract yourselves, but a judge at the Court of King’s Bench will carefully scrutinize it. Without clear legal language and Independent Legal Advice, “DIY” contracts frequently fail to properly override the Act and are easily thrown out in court.
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