Waiving Goodbye to Spousal Support: What You Need To Know

Navigating the complexities of entering into a relationship or a marriage requires more than just love and commitment; it also involves more careful financial planning.

Spousal support waivers are becoming an increasingly popular tool among couples looking to define their financial arrangements in advance or those seeking an amicable divorce. Spousal support waivers are a provision contained within a prenuptial or divorce agreement where one or both parties to the agreement decide to give up their right to receive spousal support in the event of a divorce or breakdown of the relationship.

These waivers can provide people with peace of mind and financial clarity.

However, the legal enforceability of these waivers can be complex and depends on several factors and legal requirements. Parties must turn their minds to the items outlined in this article prior to entering into a spousal support waiver.

Legal Requirements for Enforceability of Spousal Support Waivers

1. Voluntary Agreement

For a spousal support waiver to be enforceable in Alberta, it must be entered into voluntarily by both parties. This means there should be no coercion, duress, or undue influence involved in the signing of the agreement. Both parties should feel confident and comfortable with the terms.

2. Full Disclosure

Transparency is key. Both parties must fully disclose their financial situations at the time the agreement is made. This includes income, assets, debts, and any other relevant financial information. Without full disclosure, the waiver may be deemed invalid.

3. Independent Legal Counsel

It is crucial that both parties have the opportunity to seek independent legal advice before signing the agreement. Courts often require proof that each party was advised by their own attorney about the rights they are waiving. This ensures that both parties understand the implications of the waiver.

4. Fair and Reasonable Terms

The terms of the waiver must be fair and reasonable at the time of signing and at the time of enforcement. If the waiver is deemed unconscionable—meaning it is excessively unfair to one party—it may not be enforced.

Enforceability of Spousal Support Waivers

Although two parties may enter into a spousal support waiver, it does not render the waiver final, even after the execution of a prenuptial or divorce agreement. In Alberta, the enforceability of spousal support waivers is guided by both the federal Divorce Act and the Alberta Family Law Act. These two pieces of legislation outline the objectives of spousal support orders, which include recognizing economic advantages or disadvantages arising from the marriage, dividing financial consequences related to childcare, relieving economic hardship due to the breakdown of the marriage, and promoting economic self-sufficiency.

There are several factors that may impact the enforceability of spousal support waivers:

1. Change in Circumstances

Life is unpredictable. A sudden change in circumstances, like being unable to work or an unforeseen health issue, can impact the enforceability of a spousal support waiver, even many years after a divorce. When one party’s circumstances differ from those of the other upon the couple’s separation, they may apply to challenge a spousal support waiver. In these cases, Courts often consider whether the financial or personal situations of either party have substantially changed since the agreement was signed.

The Court is tasked with determining whether the waiver remains fair given the new circumstances. For example, if the party receiving support experiences a significant improvement in their financial status, or if the paying party suffers a substantial decrease in income, the Court may find the original terms of the waiver unfair or unconscionable. Additionally, changes in personal circumstances such as remarriage or cohabitation with a new partner can also influence the court’s decision to modify or terminate spousal support.

A situation where one party is diagnosed with a chronic or terminal illness may also render a spousal support waiver unenforceable. Ultimately, the court aims to ensure that the support arrangement remains equitable and reflective of the current realities of both parties.

2. Public Policy Considerations

If the enforcement of a spousal support waiver is contrary to public policy, Courts may refuse to enforce the waiver. Examples of circumstances where a spousal support waiver may be considered contrary to public policy include a waiver that would leave one party in a situation of undue financial hardship or leave a party reliant on public assistance. In these situations, the Court may invalidate the spousal support waiver.

3. Timing of the Agreement

The timing of when a spousal support waiver is signed might affect its enforceability. Agreements containing spousal support waivers that are signed too close to the wedding date may be scrutinized more closely for signs of pressure, coercion or lack of voluntary consent when entering into the agreement. Suppose a prenuptial agreement, including a spousal support waiver, is signed too close in proximity to the wedding. In that case, it may suggest duress or insufficient time for review, which can render the waiver unenforceable.

Additionally, the timing of the agreement’s execution relative to the marriage’s duration and the financial circumstances of the parties at the time of enforcement can also play a role. Courts may find a waiver unconscionable if it leaves one party in a significantly disadvantaged financial position. Ensuring that the agreement is executed well before the wedding and under fair conditions is crucial for its enforceability.

4. Fraud

Fraud can significantly impact the enforceability of spousal support waivers. This situation can arise when the spousal support waiver was based on incomplete and misleading information. The waiver may be deemed invalid due to a lack of full disclosure or unfair and unreasonable terms, given the true financial circumstances that were concealed from one party.

Suppose one party fraudulently conceals assets or misrepresents their financial situation. In that case, it may be a violation of the legal requirement stipulating that parties may only enter into spousal support waivers after a full and honest exchange of financial information. Fraudulent actions can lead to the invalidation of such waivers, ensuring that both parties are treated fairly in the event of a divorce.

Spousal support waivers can provide clarity and financial security for both parties in a marriage or upon the dissolution of a relationship.

However, ensuring their enforceability in Alberta requires careful attention to legal requirements of entering into such agreements, and potential changes in the circumstances of the parties over time. If you are considering waiving your right to spousal support, consult with experienced legal counsel to ensure that you are making an informed decision that protects your interests and provides you with peace of mind for the future.

Additionally, Counsel will be able to confirm that any agreement you consider entering into is drafted in a manner that is fair, reasonable, and likely to be upheld if challenged in Court.