Can a Prenup Waive Spousal Support in British Columbia?

Many people asking for a prenup want to give up, or limit, spousal support if the relationship ends. Others are asked to sign one and wonder whether a clause like that would really be enforced.

In British Columbia, the Family Law Act allows such clauses, but it also gives the court real power to review them. This article explains both sides. It is general information only, and the outcome in any case depends on the facts.

This article covers the law of British Columbia.

Yes, spousal support can be waived

Despite the duty to provide spousal support in section 160, a spouse may agree to release the other spouse from liability for spousal support. So a marriage agreement can waive spousal support.

An agreement does not have to be all-or-nothing. It may also provide for the circumstances under which spousal support will change or end. One condition is not binding, however: a requirement that the spouse abstain from sexual relations after separation.

How a witnessed agreement is treated

The set-aside regime for spousal support agreements applies to a written agreement with each spouse's signature witnessed by at least one person, and the same person may witness both signatures. The court may not make a spousal support order if the spouses have such a witnessed agreement, unless all or part of it is set aside.

A written spousal support agreement filed in the court is also enforceable under the Act as if it were a court order. If an agreement is signed but not witnessed, it is not automatically void, because the court may apply the same review rules to it if appropriate in all the circumstances. It is simply less certain.

When a court can set the waiver aside

The court may set aside or replace a spousal support agreement only if one of these circumstances existed when it was made.

• A spouse failed to disclose income, significant property or debts.
• A spouse took improper advantage of the other's vulnerability.
• A spouse did not understand the nature or consequences of the agreement.
• Other circumstances made the agreement voidable at common law.

Even then, the court may decline to act if it would not replace the agreement with an order substantially different from its terms. Legal advice is not a condition of validity under these sections, but the Province advises getting it before final decisions. Skipping it can make the problems above, such as not understanding the agreement, easier to raise.

The significantly unfair test

Even if none of those circumstances existed, the court may set aside or replace a spousal support agreement, including a waiver, if it is significantly unfair. This matters for waivers because the world often changes after the signing. The court considers five factors: time that has passed, changes since the agreement in a spouse's condition, means, needs or other circumstances, the spouses' intention to achieve certainty, their reliance on its terms, and the degree to which the agreement meets the objectives in section 161.

Those objectives include recognizing economic advantages or disadvantages to the spouses, apportioning the financial consequences of child care, relieving economic hardship from the breakdown and, as far as practicable, promoting each spouse's economic self-sufficiency within a reasonable period.

For example, a waiver signed by two people with similar careers may look different many years later if one of them left work to raise children. Whether that would be significantly unfair is a question for the court on the full facts.

Child support and parenting are different

A prenup cannot settle everything about children. An agreement respecting child support is binding only if made after separation, or when the parties are about to separate for the purpose of being effective on separation, so a prenup's child support terms are not binding as such. Parenting terms follow a similar rule. Child support is determined under the child support guidelines.

What to do next

• Decide whether you want a full waiver, a time limit or conditions for change or ending.
• Exchange full financial disclosure, including income, property and debts.
• Allow enough time to read and understand the agreement before signing.
• Have both signatures witnessed and keep copies.
• Get legal advice, preferably separately for each person.
• Revisit the agreement if your family or finances change significantly.

Frequently asked questions