Does a Marriage Agreement Change Property Division in British Columbia?

If you signed a prenuptial or cohabitation agreement, you may wonder whether it still controls what happens to your property if the relationship ends. Or you may be the spouse who now thinks the agreement is unfair.

In British Columbia, the Family Law Act gives agreements real weight, but not unlimited weight. This article explains what an agreement can do, when a court will set it aside, and what to do if you are in either position.

This article covers the law of British Columbia.

What an agreement can change

Without an agreement, spouses are equally entitled to family property and equally responsible for family debt. An agreement can change that. Spouses may agree in writing to divide property and debt equally or unequally, change what is included or excluded, or value items differently.

Common-law couples can also opt out of the usual sharing by agreement.

When a court will follow it

A court cannot override a written, witnessed agreement unless it is set aside under section 93 of the Act. So the starting point is that a properly made agreement is generally followed.

This is different from the court's power to order an unequal division where an equal division would be significantly unfair, which applies to family property and debt. When deciding that, one factor is the terms of any agreement other than one under section 93(1).

When an agreement can be set aside

An agreement can be set aside or replaced on grounds in section 93, such as the following:

• Non-disclosure by a spouse.
• One spouse taking improper advantage of the other.
• A spouse not understanding the nature of the agreement.
• Other circumstances that would make it significantly unfair, having regard to time passed, the intent for certainty and reliance.

Honest financial disclosure is therefore central. If a party knowingly failed to disclose relevant information and an agreement is set aside, the court may order the other party to pay the applicant's family dispute resolution expenses.

Whether the grounds are met depends on the facts of your situation, so a lawyer should review the agreement and how it was signed.

Deadlines for challenging an agreement

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. This is distinct from the general time limit to start a property claim, which is no later than 2 years after a divorce judgment for married spouses or after separation for spouses in a marriage-like relationship.

Delay can hurt you, and time passed is also one factor in deciding whether an agreement is significantly unfair. If you think you have grounds, get advice promptly.

What to do next

• Find the signed agreement and any earlier drafts, and check for signatures and witnesses.
• Gather the financial information that existed when you signed, such as statements and tax records.
• Write down how the agreement was presented to you, including any pressure or lack of time.
• Note the date you found out about anything you think was not disclosed.
• Get legal advice before relying on, or challenging, the agreement.

If a spouse fails to give proper disclosure when ordered, the court may draw an adverse inference, order payment of expenses or make other orders. A lawyer can explain how that could apply to you.

Frequently asked questions