What Can a Prenup or Marriage Agreement Cover in British Columbia?

Many couples in British Columbia want to put their financial plans in writing, whether before a wedding, when moving in together, or later in the relationship. People often call this a prenup, a marriage agreement or a cohabitation agreement. The Family Law Act does not use those labels, but it does let spouses make agreements about many of the same things.

Not everything you might want to include will actually be binding. Some topics are yours to decide, and others, especially those involving children, are controlled by the court. This article walks through what an agreement can cover, what it cannot, and how to sign it properly.

This article covers the law of British Columbia.

Who can make this kind of agreement

The property rules in the Family Law Act speak of spouses. A person is a spouse if they are married to another person, or if they have lived with that person in a marriage-like relationship for a continuous period of at least 2 years; except in Parts 5 and 6, having a child with that person can also make someone a spouse. For the property division rules in Part 5, unmarried partners become spouses only after those 2 continuous years of living together.

A spousal relationship begins on the earlier of the date you began living together in a marriage-like relationship or the date you married. Because the rules do not limit when an agreement is made, spouses who are already married can also make a property agreement during the marriage. The same rules apply whether the spouses are married or not.

What you can settle: property and debt

By default, spouses are presumed 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 may make agreements about dividing property and debt despite the default rules in that Part, although a court can set them aside in limited situations. Under that power, an agreement can do the following:

• Divide family property or family debt equally or unequally.
• Include items that would not otherwise count, such as an inheritance or a pre-marriage asset like a business interest.
• Exclude items that would otherwise be included, such as a business or a home.
• Value property or debt differently than the default valuation would.
• Provide for joint ownership or shared possession of a companion animal, or give one spouse exclusive ownership or possession.

Spousal support: change it, end it or waive it

An agreement about spousal support may set out the circumstances in which support will change or end. A spouse may also agree to release the other from liability for spousal support, even though the Act otherwise creates a duty to provide it.

There is one exception. A condition that a spouse must abstain from sexual relations after separation is not binding. Also, a written spousal support agreement that is filed in the court is enforceable under the Act as if it were a court order.

What a prenup cannot reliably decide: children

Agreements about children are treated differently, because the court puts the child's interests first. Here is how the main topics work:

Even a valid later agreement can be changed. The court may set aside or replace a child support agreement if it would make a different order after considering the relevant matters. Child support is determined under the child support guidelines, though the court may order a different amount if the parties consent or have an agreement and reasonable arrangements have been made for the child. On parenting, on a party's application the court must set aside or replace any part of an agreement that is not in the child's best interests.

Signing it properly

A written agreement means one in writing that is signed by all parties. To fall within the court's set-aside regime for property, each spouse's signature must be witnessed by at least one other person, and the same person may witness both signatures. Spousal support agreements follow the same pattern. The Act does not require notarization, a commissioner or a lawyer's signature.

An unwitnessed signed agreement is not automatically void. The court may still apply the set-aside rules to it if that is appropriate in all the circumstances, though it is not clearly within the protected regime.

Next steps: protect the agreement

On a spouse's application, a court can set aside or replace a witnessed property agreement only if one of the listed situations existed when it was made, including where a spouse failed to disclose significant property or debts, took improper advantage of the other's vulnerability, or did not understand the nature or consequences of the agreement. Even then, the court can decline to act if it would not replace the agreement with an order substantially different from its terms. Separately, the court may set aside or replace a property agreement that is significantly unfair, even where none of the listed situations existed.

Spousal support agreements have similar grounds. Full disclosure and real understanding therefore help an agreement hold up.

• List your property, debts and income honestly and share them with your partner.
• Make sure you both understand what each term means and what you are giving up.
• Put it in writing, have both of you sign, and have each signature witnessed.
• Keep a signed copy each.
• Get legal advice before making final decisions, as the Province recommends.

Frequently asked questions