Does a Marriage Agreement Override Property Division in BC?

You signed a prenuptial or marriage agreement, and now the relationship is ending. You may be wondering whether it still controls who gets what, or whether a court will ignore it and simply split everything in half.

In British Columbia, the Family Law Act sets default rules, but spouses can change them by agreement. This article explains how that works, when an agreement can be challenged, and what to do if you are in this position.

This article covers the law of British Columbia.

What the default rules say, and how an agreement changes them

Unless an agreement or order says otherwise, spouses are equally entitled to family property and equally responsible for family debt. That equal split is the starting point, not a fixed rule.

Spouses may agree in writing to divide property and debt equally or unequally, change what is included or excluded, or value items differently. A court cannot override a written, witnessed agreement unless it is set aside under section 93. That is why a well-made agreement carries real weight.

Who counts as a spouse for these rules

A person is a spouse if they are married, or have lived in a marriage-like relationship for a continuous period of at least 2 years; a spouse also includes a former spouse. Having a child together does not make a couple spouses for property and pension division without the 2-year period.

Common-law couples can also opt out of the default sharing by agreement. So the same questions about enforceability can apply to a cohabitation agreement.

When an agreement can be set aside or replaced

A property agreement can be set aside or replaced on grounds in section 93, such as non-disclosure, one spouse taking improper advantage, a spouse not understanding the nature of the agreement, or other circumstances that would make it significantly unfair. When considering unfairness, the court has regard to the time that has passed, the intent for certainty, and reliance on the agreement.

• Non-disclosure: a spouse did not share relevant financial information before signing.
• Improper advantage: one spouse took unfair advantage of the other.
• No understanding: a spouse did not understand what the agreement meant.
• Significant unfairness: other circumstances make the result significantly unfair.

If a party knowingly failed to disclose relevant information and the agreement is set aside, the court may order that party to pay the applicant's family dispute resolution expenses.

Agreement terms and the separate unfairness power

A written, witnessed agreement cannot be overridden by a court unless it is set aside. Where the default rules apply, the court may order an unequal division of family property or debt if an equal division would be significantly unfair; the government says courts will not order unequal division in most cases. One factor the court considers is the terms of any agreement other than one under section 93(1).

Which route applies to you, and how the factors weigh, depends on your facts. A lawyer can confirm how these rules apply to your agreement.

Time limits and what to do next

A separate 2-year window applies to applications to set aside or replace an agreement, running from when the spouse discovered or ought to have discovered the grounds. Separately, a proceeding to divide property must be started no later than 2 years after a divorce judgment for married spouses, or after separation for spouses in a marriage-like relationship. That time limit is suspended while the persons are in family dispute resolution with a professional or a prescribed process.

• Find the signed agreement and any amendments, and note whether it was witnessed.
• Gather the financial disclosure that was exchanged before signing, if any.
• Note the dates: when you separated, any divorce judgment, and when you learned of any problem.
• Collect statements showing what each spouse owned and owed.
• Speak with a lawyer before the time limits run out.

Frequently asked questions