Prenuptial agreements are legal and enforceable in British Columbia under the Family Law Act, S.B.C. 2011, c. 25. These agreements are often referred to simply as “agreements respecting property division or spousal support”. They can be made before or during a marriage.

Under section 92(1) of the Family Law Act:

“Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt];

(e) jointly own a companion animal;

(f) share possession of a companion animal;

(g) give exclusive ownership or possession of a companion animal to one of the spouses.”

What makes a prenuptial agreement enforceable in B.C.?

1. Writing and Signatures

There is no prescribed statutory form for agreements under Part 5 of the Family Law Act, but as a matter of basic contract law, the agreement must be:

In writing
Signed by both parties

Witnessing is not required by statute but is considered best practice for evidentiary reasons.

2. Independent Legal Advice (ILA)

Independent legal advice is not legally required, but is highly recommended. If one or both parties did not receive ILA, the agreement is more vulnerable to challenge under section 93 of the Family Law Act.

3. Disclosure

While there is no express statutory requirement for financial disclosure at the time of signing, failure to disclose significant financial information may be grounds for a court to set aside the agreement as “significantly unfair.”

The Family Law Act, s. 93(3) provides:
“On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.”

This section gives the court broad discretion to set aside agreements, particularly where there is:

Unequal bargaining power;
Lack of understanding of legal consequences;
Substantial unfairness in outcome.

4. Standard of Review: Significant Unfairness

British Columbia applies a “significant unfairness” test, rather than the “unconscionability” test used in some other provinces.

Under section 93(5) of the Family Law Act, a court may consider the purpose of the agreement to promote certainty when deciding whether to uphold it, but this does not override the fairness assessment. This section of the Act provides:

“Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) the intention of the spouses, in making the agreement, to achieve certainty;

Unique Issues in British Columbia

Division of Property: Family vs. Excluded

British Columbia distinguishes between:

Family property – subject to equal division (s. 84 of the Family Law Act)
Excluded property – not subject to division, unless its value has increased (s. 85 of the Family Law Act)

Examples of excluded property include:

Property owned before the relationship;
Inheritances and gifts received during the relationship;
Personal injury awards;
Insurance proceeds.

However, the increase in value of excluded property during the relationship is considered family property.

A prenuptial agreement can:

Clarify or expand what is excluded;
Modify how increases in excluded property are treated;
Fully opt out of the default equal division rules under section 92 of the Family Law Act.

Key Takeaways

B.C. law gives couples substantial autonomy to opt out of default rules through agreement.
Agreements should be drafted with care: lack of disclosure, unequal bargaining power, or unfair outcomes can lead to set-aside litigation.
The “significant unfairness” test gives B.C. courts more latitude than the common law “unconscionability” standard.
Because of the excluded property regime, parties should clearly define what will be kept separate and how increases in value will be treated.

You’re Invited to Call or E-Mail!

If you’re considering a prenuptial agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at (800) 837-0460 or email us using our contact form here. We can help you prepare an Ontario agreement.