- The court can set aside a witnessed property agreement only if a listed circumstance existed when it was made, such as improper advantage of vulnerability or not understanding the agreement.
- Even without those grounds, the court may act if the agreement is significantly unfair.
- Being rushed or pressured is not itself a listed ground, so the facts around it matter.
Many people sign a prenup close to the wedding, with invitations sent, money spent and family waiting. If that was you, you may now wonder whether the agreement can be undone because of the timing or the pressure you felt.
British Columbia's Family Law Act gives the court specific grounds to set aside or replace a property agreement. This article walks through them in plain language. It is general information, and a lawyer can tell you how they apply to your facts.
This article covers the law of British Columbia.
Is a rushed signing enough on its own?
The Act does not list "signed close to the wedding" or "felt pressured" as a ground by itself. For a witnessed written property agreement, the Supreme Court may set aside or replace all or part of it only if one of the listed circumstances existed when the agreement was made.
That does not mean timing is irrelevant. How rushed you were, what you were told and what you understood can be evidence for the listed grounds below.
The grounds that fit pressure situations
| Ground | What it means in the Act |
|---|---|
| Non-disclosure | A spouse failed to disclose significant property or debts, or other information relevant to the negotiation |
| Vulnerability | A spouse took improper advantage of the other's vulnerability, including ignorance, need or distress |
| No understanding | A spouse did not understand the nature or consequences of the agreement |
| Common law | Other circumstances that would cause a contract to be voidable at common law |
Pressure may connect to the vulnerability ground if one person took improper advantage of the other's distress or need. A very short time to review may connect to whether you understood the agreement. Whether the facts meet these tests is for the court to decide.
If none of the grounds applies
Even where none of those circumstances existed, the court may set aside or replace all or part of a property agreement if it is significantly unfair. In deciding, it considers how long ago the agreement was made, the spouses' intention to achieve certainty and how much they relied on its terms.
On the other side, a proven ground does not guarantee a change. The court may decline to act if, on all the evidence, it would not replace the agreement with an order substantially different from the agreement's terms.
Does it matter whether you had a lawyer or a witness?
The set-aside regime applies to a written agreement with each spouse's signature witnessed by at least one other person, and the same person may witness both signatures. The Act does not require notarization, a commissioner or a lawyer's signature.
If the agreement was signed but not witnessed, it is not automatically void. The court may apply the set-aside rules to an unwitnessed written agreement if it is satisfied that it would be appropriate in all the circumstances.
Not having legal advice is not a statutory ground, and the Act does not make advice a condition of validity. In practice, though, a lack of advice can bear on whether someone understood the agreement. That is how courts approach it in practice rather than a rule in the Act.
Spousal support and children
If the agreement waives spousal support, the rules are separate. A spouse may agree to release the other from spousal support, but the court may set aside or replace a spousal support agreement, including a waiver, if it is significantly unfair, considering factors such as changes in a spouse's circumstances since signing.
Child support and parenting terms in a prenup are not binding as such, because those agreements are binding only if made after separation or when the parties are about to separate.
What to do next
- Write down the timeline: when you first saw the draft, when you signed and who was present.
- Keep messages, emails and drafts that show what was said and any deadlines you were given.
- Gather the financial information you had at the time, and what you have learned since.
- Check whether each signature was witnessed.
- Speak to a family lawyer soon, since deadlines may apply and a lawyer can confirm them.
Frequently asked questions
Will a BC court automatically cancel a prenup signed days before the wedding?
No. The court can set aside a witnessed property agreement only if a listed circumstance existed when it was made, or if it finds the agreement significantly unfair. Close timing may be part of the evidence.
What if I did not understand what I signed?
Not understanding the nature or consequences of the agreement is a listed ground. The court may still decline to act if the result would not be substantially different from the agreement.
Does the prenup need to be notarized?
No. The Act requires a written agreement signed by the spouses, with each signature witnessed by at least one other person; notarization, a commissioner or a lawyer's signature is not required.
Can I still challenge the part about spousal support?
Possibly. The court may set aside or replace a spousal support agreement, including a waiver, if a listed circumstance existed or if it is significantly unfair. A lawyer can review your facts.
Sources
- Family Law Act (BC Laws), Part 1 — bclaws.gov.bc.ca
- 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
- Province of BC – Dealing with Property and Debt — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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