Does a BC Prenup Still Apply If We Separate After Many Years?

You signed a marriage agreement years ago. Since then you may have had children, changed careers, moved or built or lost a business, and now you wonder whether the agreement still holds.

This article explains what the BC Family Law Act says about how time and changed circumstances affect an agreement between spouses. How a court would apply these rules to your situation depends on the facts, so a lawyer can confirm where you stand.

This article covers the law of British Columbia.

Does an agreement simply expire?

The Family Law Act lets spouses make agreements about dividing property and debt despite the default rules, and the default rules apply only subject to an agreement or order that provides otherwise. The length of time since the agreement was made is one factor the Supreme Court considers when deciding whether a property agreement is significantly unfair.

How long ago you signed can matter when someone asks the court to set the agreement aside. Whether any time limits apply to your agreement or to an application about it depends on your situation, so it is worth confirming with a lawyer.

Property: what the court can look at

For a witnessed written property agreement, the Supreme Court may set aside or replace all or part of it only if one of the listed circumstances existed when it was made. These are the grounds:

• A spouse failed to disclose significant property or debts, or other relevant information.
• A spouse took improper advantage of the other's vulnerability, including ignorance, need or distress.
• A spouse did not understand the nature or consequences of the agreement.
• Other circumstances that would make a contract voidable under the common law.

Notice that these grounds look back to the time of signing. Later events such as children or a career shift are not on that list.

There is a second route. Even if none of those circumstances existed, the court may set aside or replace all or part of a property agreement if it is significantly unfair. For property agreements the court considers the length of time since the agreement was made, the spouses' intention to achieve certainty, and how much they relied on its terms.

Even when a ground is proven, the court can decline to act if it would not replace the agreement with an order substantially different from its terms.

Spousal support: changes matter more

An agreement may provide the circumstances under which spousal support will change or end, and a spouse may agree to release the other from spousal support. If the agreement is written and each signature is witnessed, the court may not make a spousal support order unless all or part of the agreement is set aside.

However, the court may set aside or replace a spousal support agreement, including a waiver, if it is significantly unfair, even if no problem existed at signing. For spousal support the court considers:

• The time that has passed.
• Changes since the agreement in a spouse's condition, means, needs or other circumstances.
• The spouses' intention to achieve certainty.
• Their reliance on the agreement's terms.
• How far the agreement meets the objectives of spousal support.

Those objectives include recognizing economic advantages or disadvantages to the spouses, apportioning the financial consequences of child care, relieving economic hardship from the breakdown, and, as far as practicable, promoting each spouse's economic self-sufficiency within a reasonable period. Years of child care or a career sacrificed for the family are the kind of changes that can bear on these factors.

Children: older terms are not binding

An agreement about child support is binding only if made after separation, or when the parties are about to separate for the purpose of being effective on separation. The same limit applies to parenting arrangements. So child terms in an agreement signed years ago are not binding as such.

Child support is determined in accordance with the child support guidelines. The court may order a different amount if the parties consent or have an agreement and the court is satisfied that reasonable arrangements have been made for the child's support.

What to do next

Whether your agreement is likely to hold, and whether a challenge would succeed, depends on the facts. A lawyer can read the document with you and explain which parts are most likely to be tested.

• Find the signed agreement and check for witness signatures.
• List what each of you owned and owed when you signed, and what has changed since.
• Note changes in income, health, child care and career since signing.
• Collect records showing what you disclosed to each other before signing.

Frequently asked questions