Is a Prenup Enforceable in British Columbia? What to Know

You are engaged or married, someone has handed you a prenup, and you want to know whether it will actually mean anything if the relationship ends. It is a fair worry. People often sign these documents under time pressure, and others later find the terms did not turn out the way they expected.

In British Columbia, the Family Law Act sets out when spouses can contract out of the default rules and when a court can step in. The short answer is that a properly made prenup is often given real weight, but it is not untouchable, and some subjects cannot be settled in advance at all.

This article covers the law of British Columbia.

What makes a prenup count in BC

The Family Law Act uses the word "spouses" and does not use the term "prenup" or "marriage agreement". Those are everyday labels for an agreement spouses make about how property and debt are divided. A "written agreement" under the Act means an agreement in writing that is signed by all parties.

For the court's set-aside rules to apply in the ordinary way, the agreement should be in writing with the signature of each spouse witnessed by at least one other person. The same person may witness both signatures.

The Act does not require notarization, a commissioner or a lawyer's signature. It also does not make a lawyer or independent legal advice a condition of validity, although the Province advises people to get legal advice before making final decisions about property and debt.

What a prenup can change

Without an agreement, spouses are presumptively entitled to family property and responsible for family debt, and each has a right on separation to an undivided half interest in family property. That is expressly subject to an agreement or order that provides otherwise. Spouses can make agreements about dividing property and debt despite the usual Part 5 rules, subject to the court's power to set them aside.

A property agreement can do several things:

• Divide family property or family debt equally or unequally.
• Include items that would not otherwise count, 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 rule would.
• Share a companion animal, or give one spouse exclusive ownership or possession of it.

What a prenup cannot settle in advance

Children are treated differently. An agreement about child support is binding only if it was made after separation, or when the parties are about to separate and it is meant to take effect on separation, so a prenup's child support terms are not binding as such. Parenting arrangements follow the same timing rule, so a prenup's parenting terms are not binding either. Contact terms are binding only if made among the guardians with decision-making authority over the child's associations, so they are not binding by default.

Spousal support is different again. Spouses may agree on when support will change or end, and may agree to release each other from spousal support, although a condition that a spouse abstain from sexual relations after separation is not binding. A waiver is still open to later challenge, as the next section explains.

How a prenup can still fail

On a spouse's application, the Supreme Court may set aside or replace all or part of a witnessed property agreement only if one of the listed circumstances existed when it was made. In plain terms, those are:

• A spouse failed to disclose significant property or debts, or other information relevant to the negotiation.
• 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.

Even if 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. And even where none of those grounds existed, the court may set aside or replace all or part of a property agreement if it is significantly unfair. It looks at the time since the agreement was made, the spouses' intention to achieve certainty, and how far they relied on its terms.

The Act sets no formal disclosure forms or advice requirements. The practical effect of skipping disclosure or advice shows up through these grounds, particularly non-disclosure and not understanding the agreement.

Practical steps before you sign

• Put the agreement in writing and have both spouses sign it.
• Have each signature witnessed by at least one other person.
• Exchange full information about your property, debts and income, and keep copies of what was shared.
• Give yourself enough time to read the agreement and ask questions, rather than signing days before the wedding.
• Get legal advice about the specific terms, ideally for each spouse separately.
• Do not rely on child-related or support terms to be locked in; ask what a lawyer expects a court to do with them.
• Keep a signed, witnessed original somewhere safe.

Whether a particular prenup would hold up depends on its terms and the circumstances in which it was signed. A lawyer can review your document and explain how it is likely to be treated.

Frequently asked questions