A well-drafted marriage agreement is the most reliable way to protect significant assets in BC. Here's what makes them enforceable — and what gets them thrown out.
<p>A marriage agreement — commonly called a prenuptial agreement, or "prenup" — is the most reliable legal tool available to BC couples who want certainty about what happens to their assets if the relationship ends. For high-net-worth individuals, family business owners, or those entering second marriages with significant existing assets, a carefully drafted agreement can be worth far more than its cost.</p>
<h2>What BC Law Says About Marriage Agreements</h2>
<p>BC's <em>Family Law Act</em> explicitly recognizes marriage agreements as binding legal contracts. Unlike some other provinces, BC does not require a marriage agreement to be registered or filed — it simply needs to meet the requirements for a valid contract and comply with the Act's provisions about fairness and disclosure.</p>
<p>A marriage agreement in BC can:</p>
<ul>
<li>Define which assets are excluded from family property (including pre-relationship wealth and future inheritances)</li>
<li>Set out how property will be divided on separation, including departures from equal division</li>
<li>Waive or limit spousal support</li>
<li>Specify how debts will be allocated</li>
<li>Address what happens to a business interest</li>
</ul>
<p>It cannot override child support obligations or pre-determine custody and access arrangements — those are always decided based on the children's best interests at the time.</p>
<h2>What Makes a Marriage Agreement Enforceable</h2>
<p>BC courts will uphold a marriage agreement that meets these criteria:</p>
<h3>Full Financial Disclosure</h3>
<p>Both parties must have a clear picture of the other's financial situation before signing. This means disclosing assets, liabilities, income, and significant expected future wealth (such as an anticipated inheritance). An agreement signed without proper disclosure is vulnerable to challenge.</p>
<h3>Independent Legal Advice</h3>
<p>Each party should have their own lawyer review the agreement and advise them on its implications. Courts look very carefully at agreements where one party did not have independent advice — particularly if that party gave up significant rights.</p>
<h3>Voluntary Agreement</h3>
<p>The agreement must be entered into freely, without coercion or undue pressure. Presenting a prenup days before a wedding, after guests have arrived and flights are booked, is precisely the kind of situation courts scrutinize. The timing of the signing matters.</p>
<h3>Fairness at the Time of Enforcement</h3>
<p>A court can set aside an agreement that would be significantly unfair when it is sought to be enforced — even if it was fair when signed. Dramatically changed circumstances (serious illness, loss of earning capacity, care of children) can make a previously reasonable agreement unconscionable.</p>
<h2>Common Provisions in High-Net-Worth Agreements</h2>
<p>In practice, high-net-worth marriage agreements in BC typically address:</p>
<ul>
<li><strong>Pre-relationship assets:</strong> Confirming that each spouse's existing wealth — including investment portfolios, real estate, and business interests — remains their separate property</li>
<li><strong>Inherited wealth:</strong> Specifying that inheritances (and growth on them) remain excluded</li>
<li><strong>Business interests:</strong> Defining how a family business or professional practice will be treated on separation</li>
<li><strong>Spousal support caps or waivers:</strong> Setting a maximum duration or amount of support, or waiving it entirely</li>
<li><strong>Sunset clauses:</strong> Some agreements include provisions that change the division formula depending on how long the marriage lasts — recognizing that a 20-year marriage warrants different treatment than a 3-year one</li>
</ul>
<h2>Postnuptial Agreements</h2>
<p>There is no requirement in BC that a marriage agreement be signed before the wedding. A postnuptial agreement — signed after marriage — has equal legal standing. These are often used when:</p>
<ul>
<li>A spouse receives a significant inheritance after marriage</li>
<li>One spouse starts or acquires a business</li>
<li>A couple reconciles after a period of separation and wants clear terms going forward</li>
<li>Couples simply didn't address these issues before the wedding and want to do so now</li>
</ul>
<h2>The Cost of Not Having One</h2>
<p>Without a marriage agreement, BC's default rules apply. That means equal division of all family property accumulated during the relationship, spousal support based on the SSAG formula, and potentially years of expensive litigation to resolve disputes about valuation and entitlement.</p>
<p>For high-net-worth individuals, the cost of that litigation — in legal fees, stress, and lost time — can easily exceed the cost of a well-drafted agreement many times over.</p>
<p>Sea to Sky Law has 35 years of experience drafting and advising on marriage agreements in BC. If you would like to explore whether an agreement makes sense for your situation, we are here to help.</p>
Yes — BC calls them 'marriage agreements' and they are enforceable under the Family Law Act. Courts will uphold them if both parties had independent legal advice, full financial disclosure was made, and the agreement was entered into voluntarily. Agreements that are grossly unfair or were signed under pressure can be set aside.
Yes — a postnuptial agreement has the same legal standing as a prenuptial one in BC. Many couples choose to put one in place after a significant financial event, such as receiving an inheritance, starting a business, or receiving a promotion that creates a significant income gap.
A marriage agreement can address property division (including excluding specific assets or inheritances), spousal support (including waiving it entirely), and debt allocation. It cannot address child support or child custody arrangements — those are always determined by the children's best interests at the time.
The closer to the wedding, the more vulnerable the agreement is to a claim of duress. Courts look more carefully at agreements signed in the final days before a ceremony. Ideally, both parties should have several weeks to review, obtain independent advice, negotiate, and sign without time pressure.