Can You Get a Prenup After You Are Married in BC?

You are already married, and you wish you had signed a prenup. Maybe you have since started a business, received an inheritance, or bought a home, and you want clear rules about what happens if the marriage ends.

In British Columbia, it is not too late. Spouses can still make a written agreement, though the Family Law Act has its own rules about how it should be signed and when a court can review it.

This article covers the law of British Columbia.

Yes, married spouses can make an agreement

The Family Law Act does not use the terms "postnup", "marriage agreement" or "cohabitation agreement". What it does say is that spouses may make agreements respecting the division of property and debt despite the usual Part 5 rules, subject to the court's power to set them aside. Because the section speaks of "spouses" and does not limit when the agreement is made, spouses who are already married may make a property agreement during the marriage.

A person is a spouse if married to another person, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. So the same approach is open to long-term unmarried partners who meet that test, and a written agreement can opt out of the default rules.

Why spouses sign one mid-marriage

By default, 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, unless an agreement or order says otherwise. An agreement lets you change that picture. Under the Act it can:

• 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 would.
• Deal with a companion animal, by sharing it or giving one spouse exclusive ownership or possession.

The relationship is dated from the earlier of the date you began living together in a marriage-like relationship or your wedding date. That can matter when sorting out what was brought into the relationship and when.

Signing it so it can be relied on

The agreement should be in writing and signed by all parties. For the court's set-aside regime to apply in the ordinary way, each spouse's signature should be witnessed by at least one other person, and the same person may witness both. No notarization, commissioner or lawyer's signature is required.

If a signed agreement was not witnessed, it is not automatically void, because the court may apply the rules to it if appropriate in all the circumstances. It is still not clearly within the protected regime.

Signing mid-marriage does not take away the court's review power. The agreement is subject to the same set-aside rules. The court may set aside or replace all or part of it only if, when it was made, a spouse failed to disclose significant property, debts or other relevant information, took improper advantage of the other's vulnerability, did not understand the agreement, or other common law grounds applied. It may also act if the agreement is significantly unfair.

The Province advises getting legal advice before making final decisions about property and debt, although the Act does not make advice a condition of validity.

What an agreement after the wedding cannot do on its own

So an agreement signed while you are happily together can sensibly address property, but it cannot lock in child support or parenting terms in advance. Those can be settled once you separate, and a written agreement filed in court is enforceable as if it were a court order.

Steps to take if you want one

• Decide with your spouse what the agreement should cover, such as a business, a home, an inheritance or debts.
• List your property, debts and income and share them openly with each other.
• Allow time for each of you to read the draft and ask questions.
• Each get legal advice, so you both understand the consequences.
• Sign the written agreement and have each signature witnessed by at least one other person.
• Keep a signed copy each, and revisit the agreement if your circumstances change significantly.

How a particular agreement would be treated depends on its wording and the facts. A lawyer can help you draft it and explain its limits.

Frequently asked questions