Does a Prenup From Another Country or Province Count in BC?

Many people arrive in British Columbia with a marriage contract, prenuptial agreement or cohabitation agreement signed in another country or another province. The natural question is whether a BC court will respect it if the relationship ends.

There is no one-line answer, because it turns on where and how the document was made and on your circumstances. This article explains what BC's Family Law Act looks for, so you know what to ask a lawyer.

This article covers the law of British Columbia.

Why there is no simple yes or no

A prenup from elsewhere raises questions beyond the Family Law Act: where you lived when you signed, which place's law the document refers to, and where you live now. Those questions depend on the facts, and a BC family lawyer can confirm how a court would approach them.

What this article can do is show how BC treats a property agreement made by spouses, which is the yardstick you will want to compare your document against.

What BC's Act says about property agreements

Spouses are presumptively entitled to family property and responsible for family debt, with each having a right on separation to an undivided half interest in family property, but this is subject to an agreement or order that provides otherwise. Spouses can make agreements about dividing property and debt despite the usual rules in Part 5, subject to the court's power to set them aside.

Under those rules, an agreement may:

• Divide family property and debt equally or unequally
• Include items that would not otherwise be family property, such as an inheritance or a pre-marriage asset
• Exclude items that would otherwise be included, such as a business or a home
• Value property differently than the default valuation would

If your foreign agreement does things like this, it is the kind of arrangement BC's Act contemplates. Whether it is effective in BC is the part to confirm with a lawyer.

Form: signed, written and witnessed

A written agreement under the Act is an agreement in writing signed by all parties. The court's set-aside regime applies to a written agreement with the signature of each spouse witnessed by at least one other person, and the same person may witness both signatures. Notarization, a commissioner or a lawyer's signature is not required.

Agreements from other places are made under other formalities, and may not have witnessed signatures. If yours is not witnessed, the court may still apply the set-aside rules to an unwitnessed written agreement if it is satisfied that would be appropriate in all the circumstances.

If the document is not in English, you will likely need a reliable translation to show a lawyer or court. Keep the original too.

Who counts as a spouse, and what stays outside the agreement

A person is a spouse if married or if they have lived in a marriage-like relationship for a continuous period of at least 2 years. The relationship begins on the earlier of the date they began living together in a marriage-like relationship or the date of marriage. For unmarried couples, the property division rules apply only once they have lived together in a marriage-like relationship for at least two years.

Some subjects are treated differently whatever the agreement says:

• Child support: an agreement is binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation.
• Parenting arrangements: the same timing rule applies.
• Spousal support: a spouse may agree to release the other from it, but the court may set aside or replace the agreement, including a waiver, if it is significantly unfair.

So a clause in a foreign prenup about custody, parenting or child support should not be treated as settled in BC.

What to do next

• Find the original signed agreement, any amendments and a certified translation if needed.
• Note where and when it was signed, who witnessed it, and whether each of you had advice.
• List where you have lived since signing and where your property is.
• Write down what each of you disclosed about assets and debts at the time, because non-disclosure is a ground for setting aside a witnessed agreement.
• Ask a BC family lawyer to review the document before you rely on it. The Province advises getting legal advice on property and debt decisions.

If you are still planning to marry or move in together, you can also sign a new agreement that meets BC's formalities.

Frequently asked questions