- A child support agreement is binding only if made after separation, or when the parties are about to separate and mean it to take effect on separation.
- The same timing rule applies to parenting arrangements, and a court must set aside terms that are not in the child's best interests.
- A prenup can deal with property, debt and even spousal support, which is where it does most of its work.
Planning a family often prompts the question of whether a prenup can lock in what happens to the children if the relationship ends. It is natural to want certainty, especially if you already have a child or one is on the way.
In British Columbia, the Family Law Act treats children's matters differently from money between spouses. This article explains what a prenup can and cannot settle, and why.
This article covers the law of British Columbia.
What a prenup is good for
Spouses may make agreements about dividing property and debt, despite the default rules in Part 5 of the Act, subject to the court's power to set them aside. Those agreements can divide family property or debt equally or unequally.
Children's matters are not handled that way. Child support, parenting arrangements and contact each have their own rules, and those rules limit what an agreement made early in a relationship can do.
Child support
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. A prenup's child support terms are therefore not binding as such.
Child support is determined in accordance with the child support guidelines. The court may order an amount different from the guidelines if the parties consent or have an agreement and the court is satisfied that reasonable arrangements have been made for the child's support.
A written child support agreement made at the right time can be filed in the court and enforced as if it were a court order. On a party's application, the court may set aside or replace all or part of it if it would make a different order after considering the matters in section 150.
Parenting time, guardianship and contact
Two or more of a child's guardians may make an agreement about parenting arrangements, including parental responsibilities, parenting time, implementation and dispute resolution. Like child support, it is binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation. A prenup's parenting terms are therefore not binding.
A written parenting agreement that is filed in the court is enforceable as if it were a court order. Even then, on a party's application the court must set aside or replace all or part of it if it is not in the child's best interests.
Guardianship cannot be handed out by contract either. A person cannot become a child's guardian by agreement except in limited cases, so a marriage agreement cannot simply create guardianship. An agreement about contact with a child is binding only if made among the guardians who have decision-making authority over the child's associations, so contact terms in a prenup are not binding by default.
How the pieces compare
| Topic | Can a prenup bind it? | Key rule |
|---|---|---|
| Property and debt | Yes, subject to set-aside rules | Spouses may agree despite Part 5 |
| Spousal support | A waiver is possible, but can be challenged | Spouse may release the other from liability |
| Child support | Not as such | Binding only if made at or after separation |
| Parenting arrangements | No | Binding only if made at or after separation |
| Guardianship | Not by agreement alone, with limited exceptions | A person cannot become a guardian by agreement in most cases |
On spousal support, an agreement may set the circumstances under which support changes or ends, though a condition that the spouse abstain from sexual relations after separation is not binding. The court can still set aside or replace a spousal support agreement, including a waiver, if it is significantly unfair. That is a separate topic from children's matters.
What to do next
If you want your prenup to say something about children, keep the language modest and put the real decisions off until they can be made properly.
- Keep the prenup focused on property, debt and, if you choose, spousal support.
- Do not rely on child support or parenting terms written before separation; treat them as statements of intention.
- If you separate later, make a written agreement about the children at that point, based on the child's needs.
- Consider filing a separation-time agreement in the court so it can be enforced as an order.
- Speak to a lawyer if you already have children, or if a child lives with you and a partner who is not a parent.
Frequently asked questions
Can we set child support amounts in our prenup?
You can write them down, but they are not binding as such, because a child support agreement binds only if made after separation or when the parties are about to separate for the purpose of taking effect on separation. Child support is also determined under the child support guidelines.
Can a prenup say who gets the children?
A prenup's parenting terms are not binding, because a parenting agreement is binding only if made at or around separation. A court must also set aside or replace terms that are not in the child's best interests.
Can a prenup make my partner a guardian of my child?
Generally no. A person cannot become a child's guardian by agreement except in limited cases. A lawyer can tell you whether your situation fits one of them.
Can a prenup still waive spousal support?
Yes, a spouse may agree to release the other from liability for spousal support. A court can still set aside or replace such an agreement in some circumstances, including where it is significantly unfair.
Sources
- Family Law Act (BC Laws), Part 5 — bclaws.gov.bc.ca
- Family Law Act (BC Laws), Part 7 — bclaws.gov.bc.ca
- Family Law Act (BC Laws), Part 4 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
Ask our Team for a quote. We reply by email.