Infidelity clauses in prenuptial agreements are generally unenforceable in New Brunswick because Canada operates under a no-fault divorce system that prohibits punishing spouses for marital misconduct. Under New Brunswick's Marital Property Act, RSNB 2012, c. 107, courts focus on equitable property division rather than moral judgment, meaning a cheating prenup penalty that imposes financial consequences for adultery will likely be struck down as contrary to public policy. However, couples can still draft marriage contracts that address the economic consequences of separation without attempting to regulate personal behaviour.
| Key Facts | Details |
|---|---|
| Governing Statute | Marital Property Act, RSNB 2012, c. 107 |
| Infidelity Clause Enforceability | Generally unenforceable (no-fault system) |
| Marriage Contract Filing Fee | $110 total ($100 petition + $10 clearance) |
| Independent Legal Advice | Strongly recommended under Section 41 |
| Residency Requirement | 1 year in New Brunswick |
| Property Division Default | 50/50 equal division |
| Average Prenup Cost | $1,500-$5,000 CAD |
| Lawyer Hourly Rate | $250-$450 CAD |
What Is an Infidelity Clause in a New Brunswick Prenup?
An infidelity clause in a New Brunswick prenup is a contractual provision that imposes financial penalties or modified property division if one spouse commits adultery during the marriage. These clauses typically specify that the unfaithful spouse forfeits a portion of marital property, receives reduced spousal support, or pays a predetermined sum to the innocent spouse. Under the Divorce Act, R.S.C. 1985, c. 3, Section 8, marriage breakdown remains the sole ground for divorce in Canada, with 94.78% of Canadian couples choosing the one-year separation path rather than proving adultery or cruelty.
The fundamental problem with adultery clauses in prenuptial agreements in New Brunswick is that they conflict with Canada's no-fault divorce framework. When the federal government modernized family law, legislators deliberately removed moral fault from property division and support calculations. Courts in D'Andrade v. Schrage (2011 ONSC 1174) explicitly stated that "the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement." This precedent applies across Canadian provinces, including New Brunswick.
New Brunswick's Marital Property Act, Section 34 authorizes marriage contracts where "two persons may enter into an agreement, before their marriage or during their marriage while cohabiting, in which they agree on their respective rights and obligations under the marriage or on separation or the annulment or dissolution of the marriage or on death." However, this authorization does not extend to punitive provisions designed to penalize behaviour rather than address economic realities.
Why New Brunswick Courts Rarely Enforce Cheating Prenup Penalties
New Brunswick courts decline to enforce prenup cheating payouts because such clauses are deemed punitive rather than compensatory, violating the fundamental principles of Canadian family law. A 2011 Ontario Superior Court decision established that domestic contracts are not meant to deal with the duty to be faithful, and this reasoning applies equally in New Brunswick under the harmonized approach to family law across common law provinces. The court reasoned that penalizing adultery contradicts the legislative intent of no-fault divorce.
Several factors contribute to non-enforcement of infidelity clauses in New Brunswick:
- Punitive nature contradicts Section 8 of the Divorce Act, which establishes marriage breakdown as the sole divorce ground
- Lifestyle clause prenup provisions invade personal autonomy and privacy
- Proving adultery requires credible evidence beyond mere allegations
- Financial penalties for moral misconduct conflict with equitable distribution principles
- Courts view such clauses as attempts to regulate behaviour rather than address economic consequences
The LeVan v. LeVan case (2008, Ontario) demonstrated the complexity of enforcing infidelity provisions even when both parties initially agreed to them. Mr. LeVan, a wealthy businessman, agreed to pay his wife a substantial sum if unfaithful. Upon discovering his adultery, Mrs. LeVan sought enforcement, but the court carefully scrutinized whether the clause was fair and reasonable in context. New Brunswick courts would apply similar scrutiny under Section 41 of the Marital Property Act.
New Brunswick Marital Property Act Requirements for Marriage Contracts
New Brunswick requires marriage contracts to meet specific formal requirements under Section 34 of the Marital Property Act to be legally valid. The agreement must be in writing, signed by both parties, and witnessed by at least one individual who is not a party to the contract. Oral agreements regarding property division are not enforceable in New Brunswick courts. These formal requirements apply regardless of whether the contract includes an infidelity clause.
Section 41 of the Marital Property Act provides courts with authority to disregard provisions of a domestic contract under two circumstances: (a) if the domestic contract was made before the coming into force of the Act and was not made in contemplation of the Act's coming into force; or (b) if the spouse who challenges the provision entered into the domestic contract without receiving legal advice from a person independent of any legal advisor of the other spouse, where the court is of the opinion that applying the provision would be inequitable in all the circumstances of the case.
The independent legal advice requirement significantly impacts adultery clause prenuptial agreements. While Section 41 does not mandate independent legal advice as an absolute requirement, it creates substantial risk that clauses will be struck down if one party did not receive such advice. A New Brunswick court may determine that enforcing a harsh infidelity penalty against a spouse who lacked independent counsel would be inequitable.
| Validity Requirement | Description | Impact on Infidelity Clauses |
|---|---|---|
| Written Form | Must be in writing | Required for all clauses |
| Signatures | Both parties must sign | Required for all clauses |
| Witness | At least one witness | Required for all clauses |
| Full Disclosure | Complete financial disclosure | Essential for enforceability |
| Independent Legal Advice | Each party has own lawyer | Critical under Section 41 |
| Voluntary Execution | No coercion or duress | Must prove free consent |
| Reasonable Terms | Not unconscionable | Punitive clauses may fail |
Alternatives to Infidelity Clauses in New Brunswick Prenups
New Brunswick couples seeking to protect their interests without relying on unenforceable infidelity clauses should focus on provisions that address economic consequences rather than moral conduct. Marriage contracts under the Marital Property Act can validly modify the default 50/50 property division, protect pre-marital assets, exclude specific property from division, and establish spousal support frameworks. These provisions achieve practical protection without attempting to punish behaviour.
Effective alternatives to prenup infidelity clauses include:
- Sunset clauses that reduce spousal support entitlement over time regardless of cause of separation
- Asset protection provisions preserving pre-marital wealth, inheritances, and family business interests
- Spousal support waivers or limitations based on marriage duration (e.g., support reduces by 10% for each year of marriage under 10 years)
- Property division terms that keep certain assets separate regardless of conduct
- Life insurance requirements ensuring financial security independent of separation circumstances
These alternatives accomplish similar protective goals without triggering the enforceability concerns that plague cheating prenup penalty provisions. A New Brunswick family lawyer can draft terms that protect both parties' economic interests while remaining compliant with the Marital Property Act and the no-fault divorce framework.
Cost of Prenuptial Agreements in New Brunswick
A prenuptial agreement in New Brunswick typically costs between $1,500 and $5,000 CAD total when both spouses retain separate lawyers for drafting and independent legal advice. Family lawyers in New Brunswick charge hourly rates ranging from $250 to $450 CAD, with the provincial average falling around $300 to $350 per hour for prenuptial agreement work. Simple agreements protecting clearly defined pre-marital assets cost less than complex arrangements involving business interests, multiple properties, or blended family considerations.
The cost breakdown for a typical New Brunswick marriage contract includes:
- Initial consultation: $250-$500 (1-2 hours)
- Drafting the agreement: $750-$2,000 (3-6 hours)
- Negotiations and revisions: $500-$1,500 (2-4 hours)
- Independent legal advice for other spouse: $500-$1,000 (2-3 hours)
- Financial disclosure preparation: $250-$500
Online prenuptial agreement services offer fixed-price alternatives starting around $379 CAD, though these may not provide the customization or legal advice protection that Section 41 of the Marital Property Act contemplates. Given that courts may disregard provisions when a spouse lacked independent legal counsel, investing in proper legal representation typically provides better protection than attempting to include an infidelity clause that may prove unenforceable.
How Adultery Affects Divorce Proceedings in New Brunswick
Adultery remains a technical ground for divorce under Section 8(2) of the Divorce Act, but it has virtually no impact on property division or spousal support calculations in New Brunswick. Only 5.22% of Canadian divorces cite adultery or cruelty rather than the one-year separation ground. Even when adultery is proven, New Brunswick courts apply the same equitable division principles under the Marital Property Act as they would in any other divorce.
The Divorce Act, Section 8(2) specifies three grounds establishing marriage breakdown: separation for at least one year, adultery that has not been condoned, or cruelty that has not been condoned. However, proving adultery requires substantial evidence beyond allegations. Courts require credible documentation such as communications, witness accounts, or corroborating circumstances. The practical difficulty of proving adultery, combined with the identical outcome for property division, explains why most couples choose the one-year separation route.
Section 8(3) of the Divorce Act allows spouses attempting reconciliation to live together for up to 90 days during the one-year separation period without resetting the clock. If the couple cohabits for more than 90 cumulative days, the one-year period restarts. This provision encourages reconciliation attempts without penalizing couples who try but ultimately cannot save the marriage.
2021 Divorce Act Amendments and Parenting Terminology
The 2021 amendments to Canada's Divorce Act through Bill C-78 modernized parenting terminology and have implications for any prenuptial agreement addressing children. Courts now use "decision-making responsibility" instead of "custody" and "parenting time" instead of "visitation" or "access." New Brunswick couples drafting marriage contracts must use this updated terminology to ensure clarity and compliance with current legal standards.
Section 34 of the Marital Property Act explicitly states that persons "may not agree to the right to parenting time or decision-making responsibility with respect to their children" in a marriage contract. Any infidelity clause that attempts to modify parenting arrangements as punishment for adultery would be struck down on multiple grounds: it violates the prohibition on predetermining parenting matters, conflicts with the best interests of the child standard, and attempts to punish conduct rather than address economic consequences.
The 2021 amendments also codified factors courts must consider when determining parenting arrangements under Section 16(3) of the Divorce Act, including family violence as a primary consideration. These changes reinforced that parenting decisions must focus on children's welfare rather than parental conduct unrelated to parenting ability.
Enforceability Considerations for Lifestyle Clause Prenup Provisions
Lifestyle clause prenup provisions beyond infidelity penalties face similar enforceability challenges in New Brunswick courts. Clauses dictating weight maintenance, frequency of intimacy, social media usage, religious observance, or household responsibilities typically invade personal autonomy and are unlikely to survive judicial scrutiny. New Brunswick courts consistently apply the principle that marriage contracts should address economic matters, not regulate personal behaviour.
Common unenforceable lifestyle clauses include:
- Weight gain or loss penalties
- Intimacy frequency requirements
- Social media posting restrictions
- Household chore specifications
- In-law visitation mandates
- Career change restrictions
- Religious practice requirements
- Appearance or grooming standards
Even if both parties willingly agree to such provisions, New Brunswick courts retain discretion under Section 41 of the Marital Property Act to disregard terms that would be inequitable in the circumstances. The more a clause resembles an attempt to control behaviour rather than address financial matters, the less likely it will be enforced.
Steps to Create a Valid Marriage Contract in New Brunswick
Creating an enforceable marriage contract in New Brunswick requires following specific procedural steps to maximize protection under the Marital Property Act. Both parties should begin by independently consulting family lawyers to understand their rights under the default property division regime. Complete financial disclosure must occur before signing, as hidden assets can invalidate the entire agreement. The contract must be executed in writing with proper witnessing.
The recommended process for creating a New Brunswick marriage contract includes:
- Each party consults with independent legal counsel ($250-$500 per party)
- Both parties complete full financial disclosure (assets, debts, income, expectations)
- One party's lawyer drafts the initial agreement based on negotiations
- The other party's lawyer reviews and suggests modifications
- Parties negotiate any disputed terms through their lawyers
- Final agreement is prepared in proper written form
- Both parties sign in the presence of a witness
- Each party retains an original executed copy
- Consider registering or notarizing for additional protection
The total process typically requires 4-8 weeks and costs $3,000-$6,000 total when both parties use lawyers. This investment provides substantially better protection than including an unenforceable infidelity clause that may create false confidence while ultimately offering no legal remedy.
Filing Requirements and Court Fees in New Brunswick
New Brunswick does not require filing or registering marriage contracts with any court or government agency for them to be valid. The agreement becomes effective upon proper execution with signatures and witnessing. However, couples who later divorce must file for divorce through the Court of King's Bench, Family Division, which involves specific fees and residency requirements that apply regardless of whether a prenuptial agreement exists.
The current filing fees for divorce in New Brunswick total $110 CAD, comprising a $100 petition fee and a $10 Clearance Certificate fee from the Central Registry of Divorce Proceedings. As of May 2026, verify these amounts with your local Court of King's Bench Clerk/Administrator, as fees are subject to change under Rule 78.01 of the New Brunswick Rules of Court.
At least one spouse must have been habitually resident in New Brunswick for a minimum of one year immediately before filing the divorce petition, as required by Section 3(1) of the Divorce Act. There is no Canadian citizenship requirement. Courts verify residency through documentation such as a valid New Brunswick driver's license, provincial health card, or utility bills showing the New Brunswick address.
H2 Frequently Asked Questions About Infidelity Clauses in New Brunswick Prenups
Can I include an infidelity clause in my New Brunswick prenup?
You can include an infidelity clause in your New Brunswick prenup, but courts are highly unlikely to enforce it due to Canada's no-fault divorce system. The clause may be struck down as punitive and contrary to public policy. New Brunswick courts focus on equitable property division under the Marital Property Act rather than punishing marital misconduct. Consider enforceable alternatives like asset protection provisions instead.
What happens if my spouse cheats and we have an infidelity clause?
If your spouse cheats and you have an infidelity clause, you can attempt enforcement, but New Brunswick courts will likely decline to apply the punitive provisions. The D'Andrade v. Schrage (2011 ONSC 1174) precedent established that domestic contracts are not meant to address the duty to remain faithful. Property division will proceed under the Marital Property Act's equitable principles regardless of adultery.
How much does a prenup cost in New Brunswick?
A prenuptial agreement in New Brunswick costs between $1,500 and $5,000 CAD when both parties retain separate lawyers. New Brunswick family lawyers charge $250-$450 per hour for prenuptial work. Simple agreements protecting pre-marital assets cost approximately $1,500-$2,500, while complex arrangements involving business interests or blended families may exceed $5,000.
Is independent legal advice required for a New Brunswick prenup?
Independent legal advice is not absolutely required under the Marital Property Act, but Section 41 allows courts to disregard provisions if one party lacked independent counsel and enforcement would be inequitable. This creates significant risk that unfair clauses will be struck down. Both parties should obtain separate legal advice to maximize enforceability.
Can a prenup affect parenting time in New Brunswick?
No, a prenup cannot predetermine parenting time or decision-making responsibility in New Brunswick. Section 34 of the Marital Property Act explicitly prohibits agreeing to parenting arrangements in a marriage contract. Courts must determine parenting matters based on the best interests of the child standard under the Divorce Act, regardless of any prenuptial provisions.
What makes a prenup enforceable in New Brunswick?
An enforceable New Brunswick prenup must be in writing, signed by both parties, and witnessed. Both parties should provide full financial disclosure and enter the agreement voluntarily without coercion. Independent legal advice for each party strengthens enforceability under Section 41 of the Marital Property Act. Terms must be reasonable and not unconscionable.
Can adultery be used as grounds for divorce in New Brunswick?
Yes, adultery remains a ground for divorce under Section 8(2) of the Divorce Act, but only 5.22% of Canadian divorces cite this ground. Proving adultery requires substantial evidence, and it has no impact on property division or spousal support calculations. Most couples choose the one-year separation ground, which produces identical outcomes with less conflict.
What alternatives to infidelity clauses are enforceable in New Brunswick?
Enforceable alternatives include sunset clauses reducing spousal support over time, asset protection provisions for pre-marital wealth, spousal support waivers based on marriage duration, property division terms keeping specific assets separate, and life insurance requirements. These address economic consequences without attempting to punish behaviour, making them compliant with New Brunswick law.
How long does a New Brunswick prenup last?
A New Brunswick prenup remains valid indefinitely unless the parties agree to an expiration date or execute a new agreement. Marriage contracts can include sunset clauses that modify terms based on marriage duration. Couples can amend their agreement at any time by executing a new written contract that meets the formal requirements of the Marital Property Act.
Can a prenup be challenged in New Brunswick?
Yes, a prenup can be challenged under Section 41 of the Marital Property Act if one party lacked independent legal advice and enforcement would be inequitable, or if execution involved coercion, duress, or fraud. Courts can also disregard unconscionable provisions. Complete financial disclosure and independent legal advice for both parties significantly reduce challenge risk.