What Can a Marriage Agreement Include in British Columbia?

If you and your partner are drafting a prenup, one of the first questions is what you can actually put in it. Some topics are well within your control. Others can be written down, but a British Columbia court will not treat them as binding.

This article sorts the common topics into what the Family Law Act allows, what it limits, and what it does not support. It is general information, so a lawyer can confirm how it applies to your situation.

This article covers the law of British Columbia.

Property and debt: the core of most agreements

Spouses may make agreements about dividing property and debt despite the usual property rules in Part 5 of the Act, subject to the court's power to set them aside. The default is that each spouse has a right on separation to an undivided half interest in family property, but that is expressly subject to an agreement that provides otherwise.

• Divide family property or family debt equally or unequally.
• Include items that would not otherwise be included, 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 family property or family debt differently from the default valuation.
• Decide whether a companion animal is jointly owned or shared, or belongs to one spouse exclusively.

Business interests, homes and inheritances

These are among the most common reasons couples want an agreement. A business or a home that would otherwise be family property can be excluded, and a pre-marriage business interest or an inheritance can be brought in, if both spouses agree. Whether something is family property by default depends on the facts, so it helps to have a lawyer explain the starting position before you decide what to change.

Spousal support

An agreement about spousal support may provide for the circumstances under which support will change or end. A spouse may also agree to release the other from liability for spousal support, so a marriage agreement can waive it. One limit: a condition that a spouse abstain from sexual relations after separation is not binding.

A waiver is not untouchable. For a written agreement with each signature witnessed, the court can set aside or replace it if, when it was made, a spouse failed to disclose income, significant property or debts, took improper advantage of vulnerability, or did not understand it, or if other common law grounds apply. The court may decline to act on those grounds if it would not replace the agreement with an order substantially different from its terms. It can also act if the agreement is significantly unfair, taking into account changes since signing and how well it meets the objectives of spousal support.

If spouses have a written, witnessed spousal support agreement, the court may not make a spousal support order unless all or part of the agreement is set aside. A written spousal support agreement filed in the court is enforceable under the Act.

Children: what an agreement cannot do

Child support is determined under the child support guidelines. The court may order a different amount if the parties consent or have an agreement and it is satisfied that reasonable arrangements have been made for the child's support. Parenting terms that are not in the child's best interests can be set aside or replaced. In short, child support and parenting terms in a prenup are generally not binding unless they are made after separation, or when separation is about to happen and they are meant to take effect then.

Making it work: practical next steps

A written agreement is one that is signed by all parties. To fall within the court's set-aside regime for property, each signature must also be witnessed by at least one other person, and the same person may witness both. Spouses who are already married can also make a property agreement during the marriage.

• List what you each own and owe, and share it fully.
• Decide which items you want to exclude, include or value differently.
• Decide whether any spousal support waiver or change rule is fair to both of you.
• Leave children's terms for later, after separation if it happens.
• Sign in writing with each signature witnessed.
• Get legal advice, which the Province recommends even though the Act does not make it a condition of validity.

Frequently asked questions