Do You Need a Lawyer to Make a Prenup in British Columbia?

Many couples looking at a prenup start with a template or an online form. It feels simpler and cheaper than sitting down with a lawyer each, and it raises a fair question: does the law actually require legal help?

In British Columbia the answer on formal requirements is different from the answer on risk. This article explains what the Family Law Act asks for, what it does not, and how going without advice can come back later if the agreement is challenged.

This article covers the law of British Columbia.

What the Family Law Act actually requires

The Act defines a written agreement as an agreement in writing that is signed by all parties. For a property agreement to fall within the court's set-aside rules, each spouse's signature must also be 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.

Spouses can make agreements about dividing property and debt despite the default rules in Part 5 of the Act. Those defaults give each spouse a right to an undivided half interest in family property on separation, but that is subject to an agreement or order that provides otherwise.

Is independent legal advice required?

The sections of the Act that deal with property agreements and spousal support agreements do not make a lawyer or independent legal advice a condition of validity. So a signed, witnessed agreement is not invalid simply because no lawyer was involved.

That said, the Province's own guidance advises people to get legal advice before making any final decisions about dividing property and debt. The reason is practical. Advice is how most people learn what they are giving up, and whether the agreement is as clear as they think.

How skipping advice can matter later

A court can set aside or replace all or part of a witnessed property agreement only if one of the listed circumstances existed when it was made. Those circumstances are where the lack of advice tends to show up:

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

The Act does not list missing legal advice as its own ground. But without advice, and without a full exchange of financial information, it can be harder to show that both people understood the deal. How courts weigh advice is a matter of practice that a lawyer can explain for your situation.

Other ways an agreement can be challenged

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

There is also a limit on the other side. Even if a ground is proven, the court may decline to act if it would not replace the agreement with an order substantially different from its terms.

Witnessing matters too. If a signed agreement was not witnessed, the court may still apply the set-aside rules if it is appropriate in all the circumstances, so the agreement is not automatically void, but it is not clearly within the protected regime.

What to do next

If you are weighing a template against professional help, these steps make either route safer:

• Each of you lists all property, debts and income, and you exchange the lists in full.
• Allow plenty of time before the wedding or move-in so nobody signs under pressure.
• Put the agreement in writing, have both of you sign it, and have each signature witnessed.
• Consider having each person speak to their own lawyer, even briefly, to confirm they understand it.
• Keep a signed copy each, along with the disclosure lists.
• Ask a lawyer about anything unusual, such as business interests, inheritances or support terms.

Frequently asked questions