What Can and Can't Go in a Prenup or Marriage Agreement in BC?

A prenup or marriage agreement lets you and your partner decide some financial questions ahead of time, instead of leaving them to the default rules in the Family Law Act. But the law does not let you decide everything in advance, and some terms people often want to include simply will not hold.

This article goes topic by topic through what British Columbia law lets you set, what it does not, and how the form of the agreement matters. It is general information, not advice on your own situation.

This article covers the law of British Columbia.

Who can make one, and when

The property rules in the Family Law Act speak of spouses. A person is a spouse if they are married, or if they have lived in a marriage-like relationship for a continuous period of at least 2 years. The relationship begins on the earlier of the date you began living together in a marriage-like relationship or the date you married.

That means a property agreement can be made by spouses who are already married, and by unmarried couples who count as spouses. The property division rules apply to unmarried couples only once they have lived in a marriage-like relationship for at least two years, and the same agreement rules apply whether spouses are married or not. Spouses who are already married may also make a property agreement during the marriage. How this applies to an agreement signed before you marry or move in together depends on your situation, so it is worth confirming with a lawyer.

Property and debt: where you have the most freedom

By default, spouses are presumptively 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 can make agreements about dividing property and debt despite the usual Part 5 rules, although a court can set them aside in limited situations.

Spousal support: change, end or waive

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

A condition of spousal support that a spouse abstain from sexual relations after separation is not binding. A spousal support agreement, including a waiver, can also be set aside or replaced by the court in some situations, described below. A written spousal support agreement that is filed in the court is enforceable under the Act.

Children: what a prenup generally cannot settle

• Child support: an agreement is binding only if made after separation, or when the parties are about to separate and it is meant to be effective on separation, so prenup child support terms are not binding as such.
• Parenting arrangements: the same timing rule applies to agreements about parental responsibilities and parenting time, so prenup terms on these are not binding.
• Contact with a child: an agreement is binding only if made among the guardians with decision-making authority over the child's associations, so prenup contact terms are not binding by default.
• Guardianship: a person cannot become a child's guardian by agreement except in limited cases, so a marriage agreement cannot simply create guardianship.

Even an agreement made after separation is not final. A court can set aside or replace a child support agreement if it would make a different order after considering the relevant matters. On a party's application, the court must set aside or replace all or part of a parenting-arrangements agreement that is not in the child's best interests.

Form, challenges and next steps

A written agreement means an agreement in writing signed by all parties. To fall within the court's set-aside rules for property, each spouse's signature must be witnessed by at least one other person, and the same person may witness both. The Act does not require notarization, a commissioner or a lawyer's signature. Spousal support agreements follow the same witnessing approach. A court may still apply these rules to an unwitnessed written agreement if it is appropriate in all the circumstances.

On a spouse's application, a court can set aside or replace a witnessed property agreement only if certain circumstances existed when it was made: a spouse failed to disclose significant property, debts or other relevant information; took improper advantage of the other's vulnerability; did not understand the nature or consequences of the agreement; or another common-law ground applied. Even if one of these is shown, the court may decline to act if it would not replace the agreement with an order substantially different from its terms. Separately, the court may act if the agreement is significantly unfair, considering factors such as the time since it was made, the intention to achieve certainty and reliance on its terms. Spousal support agreements, including waivers, have a similar regime with extra factors such as changes in a spouse's circumstances.

• Put the agreement in writing and have both spouses sign.
• Have at least one person witness each signature.
• Share full information about your property, debts and income.
• Keep child and parenting decisions for after separation.
• Get legal advice before you sign, even though the Act does not make it a condition of validity.

Frequently asked questions