Can You Get a Prenup After Getting Married in British Columbia?

Many couples marry without signing anything and later wish they had. Maybe a business has grown, an inheritance is expected, or one of you owns a home before the relationship began. The common question is whether it is too late.

In British Columbia it is not necessarily too late. This article explains what an agreement made after the wedding is generally called, what it can cover, how to sign it, and where its limits are.

This article covers the law of British Columbia.

Yes, spouses can still make an agreement

The Family Law Act lets spouses make agreements about dividing property and debt, and it does not limit when the agreement is made. That means spouses who are already married may make one during the marriage.

Without an agreement, spouses are presumed to be entitled to family property and responsible for family debt. On separation, each has a right to an undivided half interest in family property as a tenant in common, but this is subject to an agreement or order that provides otherwise.

The word "spouse" is not limited to married people. A person is a spouse if married to another person, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. For the property division rules, unmarried partners become spouses only after two continuous years of living together, and the same agreement rules apply to spouses whether married or not.

What is it called?

People often say "postnuptial agreement" or "marital agreement". The Act does not use those labels or define them. What matters is the content: a written agreement between spouses about property and debt.

What the agreement can do

A property agreement lets you depart from the default rules, even though they would otherwise apply. For example, spouses may:

• Divide family property or family debt equally or unequally.
• Include items that would not otherwise be family property or debt, such as an inheritance or a business interest owned before the marriage.
• Exclude items that would otherwise be included, such as a business or a home.
• Value property or debt differently than the default valuation would.
• Share ownership or possession of a companion animal, or give one spouse exclusive ownership or possession.

Signing it so it holds up

A written agreement means an agreement in writing signed by all parties. The court's set-aside rules apply to a written agreement where each spouse's signature is witnessed by at least one other person, and the same person may witness both signatures. The Act does not require notarization, a commissioner or a lawyer's signature.

An unwitnessed signed agreement is not automatically void, because a court may choose to apply the same rules to it if that is appropriate in all the circumstances. Still, witnessing is the simple way to avoid doubt.

Even a witnessed agreement can be set aside in limited cases, such as when a spouse failed to disclose significant property or debts, took improper advantage of the other's vulnerability, or did not understand the nature or consequences of the agreement. Even then, the court may decline to act if it would not replace the agreement with an order substantially different from its terms.

The court may also set aside or replace all or part of a property agreement if it is significantly unfair, even where none of those circumstances existed. In deciding that, it considers the length of time since the agreement was made, the spouses' intention to achieve certainty, and how far they relied on its terms.

The Act does not make a lawyer or independent legal advice a condition of validity, but the Province advises getting legal advice before final decisions about property and debt.

Where an agreement has limits, and where it can settle things

• Child support: an agreement is binding only if made after separation, or when you are about to separate and it is meant to take effect on separation.
• Parenting arrangements: the same timing rule applies. On a party's application, a court must set aside or replace terms that are not in the child's best interests.
• Guardianship: a person cannot become a child's guardian by agreement except in limited cases, so a marriage agreement cannot simply create it.
• Spousal support: spouses can agree on when support changes or ends, or even release each other from it. A condition that a spouse abstain from sexual relations after separation is not binding.

A court can still set aside a spousal support agreement in limited circumstances, including where it is significantly unfair, and it looks at factors such as time passed and changes in a spouse's condition, means or needs. If you have a written, witnessed spousal support agreement, the court may not make a spousal support order unless all or part of that agreement is set aside.

What to do next

• List your property, debts, income and any business interests, and share them honestly with each other.
• Decide what you want to include, exclude or value differently.
• Put it in writing and have both signatures witnessed.
• Keep a signed copy each.
• Speak with a family lawyer before signing, especially if your circumstances are complex.

Frequently asked questions