Can You Waive Spousal Support in a British Columbia Agreement?

Signing a separation agreement or marriage agreement often includes a clause saying neither person will claim spousal support. It can feel like a simple way to close things off, but you may be giving up a right that is hard to get back.

This article explains how waivers work in British Columbia, when a court can still set one aside, and what to check before you sign. It is general information, not advice about your situation.

This article covers the law of British Columbia.

Is a waiver binding?

Under the Family Law Act, an agreement can state when support changes or ends, and a spouse may release the other from support liability. A waiver is therefore a recognized term, not just a statement of intent.

A court generally will not make a spousal support order while a valid witnessed written agreement stands, unless the agreement is set aside. A written agreement filed in court can also be enforced as an order. That is why it matters so much to understand what you are signing.

When a court can set an agreement aside

A witnessed written spousal support agreement can be set aside or replaced, in whole or in part, only on specified grounds, or if it is significantly unfair. The grounds include the following.

• Nondisclosure of income, property or debts.
• Taking advantage of a spouse's vulnerability.
• A spouse not understanding the nature or consequences of the agreement.
• The agreement being significantly unfair.

Whether your situation meets any of these depends on the facts, including what was shared before signing and what each person understood. A lawyer can assess that.

Agreements, orders and the factors a court looks at

When there is no binding agreement, the amount and duration of support must take into account each spouse's condition, means, needs and other circumstances, including any agreement or order about support. The Divorce Act similarly requires the court to consider any order, agreement or arrangement. Neither statute sets a minimum length of marriage for support.

Fault is generally not considered. The Family Law Act makes an exception only for conduct that arbitrarily or unreasonably causes, continues or worsens the need for support or affects ability to pay. Under the Divorce Act, misconduct in relation to the marriage cannot be considered.

Waivers, reviews and later changes

An agreement or order may provide for a review of spousal support, setting the timing, process, grounds and factors, and on review the court can confirm, set aside or end the support, or make a new order. If an agreement does not address review and the payor starts to receive, or the recipient becomes eligible for, pension benefits, a court may on application confirm, change or end the support.

New relationships are a separate question. An agreement can say that support changes or ends on cohabitation or a new relationship. Without such a term, remarriage or moving in does not end support automatically; the payor must apply to change or end it. A term requiring a spouse to abstain from sexual relations after separation is not binding.

If you want to challenge a waiver, timing matters. A spousal support proceeding under the Family Law Act generally must be started within 2 years after the divorce judgment for married spouses, or within 2 years after separation for spouses in a marriage-like relationship. That limit pauses during family dispute resolution with a professional or in a prescribed process, and it does not apply to reviews under the review and pension provisions.

Before you sign

• Ask for full disclosure of the other person's income, property and debts, and give yours.
• Make sure you understand in plain words whether the clause ends all support claims or only some.
• Consider a review clause or a term-limited arrangement instead of a complete release.
• Think about what should happen on retirement, remarriage or a new relationship, and say so in the agreement.
• Have the agreement witnessed and get independent legal advice before signing.
• Keep copies of your financial records and the signed agreement.

Frequently asked questions