What Does Significantly Unfair Mean in British Columbia Family Law?

If you are challenging a marriage or separation agreement, or defending one, you will likely meet the phrase "significantly unfair". It is a safety valve in the Family Law Act, and it is harder to rely on than it sounds.

This article explains where the test sits, what the court looks at, and how it differs for property and spousal support. It describes the general rules only; the outcome always turns on the facts.

This article covers the law of British Columbia.

Where the test fits

The court's power to set aside a witnessed written property agreement is limited. On a spouse's application, the Supreme Court may set aside or replace all or part of it only if a listed circumstance existed when the agreement was made. Those circumstances are:

• A spouse failed to disclose significant property or debts, or other relevant information.
• A spouse took improper advantage of the other's vulnerability, including ignorance, need or distress.
• A spouse did not understand the nature or consequences of the agreement.
• Other circumstances that would make a contract voidable under the common law.

Section 93(5) adds a separate route. Even if none of those circumstances existed when the agreement was made, the court may set aside or replace all or part of a property agreement if it is significantly unfair.

This set-aside regime applies to a written agreement about dividing property and debt that has the signature of each spouse witnessed by at least one other person. The same person may witness each spouse's signature, and the Act does not require notarization, a commissioner or a lawyer's signature.

These rules apply to spouses. A person is a spouse if married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. For property division, unmarried partners become spouses only after two continuous years of living together in a marriage-like relationship.

The three factors for property agreements

These are the three factors the court considers when it decides whether a property agreement is significantly unfair. How they weigh in a particular case depends on the facts, so it is worth confirming with a lawyer how they might apply to your agreement.

Spousal support agreements have more factors

For spousal support, the court may set aside or replace an agreement, including a waiver, if it is significantly unfair. It considers the time passed, changes since the agreement in a spouse's condition, means, needs or other circumstances, the intention to achieve certainty, reliance on the terms, and the degree to which the agreement meets the objectives of spousal support.

Those objectives include recognizing economic advantages or disadvantages, apportioning the financial consequences of child care, relieving economic hardship from the breakdown, and promoting each spouse's economic self-sufficiency within a reasonable period as far as practicable. Property agreements have no change-in-circumstances or objectives factor.

Illustrations, not predictions

These are general illustrations only. A spouse who gave up work to raise children and later faces serious hardship under a support waiver may argue the waiver has become significantly unfair, since changes in a spouse's needs and the support objectives are part of that test. By contrast, a spouse who signed a property agreement long ago, and whose family organized its finances around it, faces the factors of time, certainty and reliance.

Other points to keep in mind

• Even if a listed ground is proven, the court may decline to act if it would not replace the agreement with an order substantially different from its terms.
• The court may apply the set-aside rules to an unwitnessed written agreement if it is appropriate in all the circumstances.
• For spousal support, the court may likewise decline to act where the result would not be substantially different, and may apply the rules to an unwitnessed agreement.
• A property agreement may divide family property or family debt equally or unequally.
• Spouses who are already married may also make a property agreement during the marriage, and the same set-aside rules apply.
• 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

• Find the signed agreement and any drafts, and note whether signatures were witnessed.
• Gather financial disclosure from the time of signing and from now.
• Write a timeline: when you signed, what you relied on, what has changed.
• Get legal advice early, because the facts matter heavily and deadlines may apply.

How the test applies depends on your situation, so it is worth confirming with a lawyer before you decide how to proceed.

Frequently asked questions