How Can I Challenge a Prenuptial Agreement in BC?

Occasionally, after a separation, one spouse may be less than happy with an existing prenuptial agreement or cohabitation agreement. Maybe because it severely limits their spousal support or leaves them with little property. So, what are the steps needed in British Columbia to challenge a prenuptial agreement? 

After separation, to challenge a prenuptial agreement, you must first file it with the court. Then you may apply to the Supreme Court under section 93 of the Family Law Act, [SBC 2011] Chapter 25 to set aside a part or the whole agreement and to replace it with an order from the Court.

What you will need to show the court is circumstances of oppression, pressure, or other vulnerabilities. Specifically, the legislation states that you need one of the following:

  1. Duress: a party was under duress and did not freely enter into the agreement when it was negotiated or executed. For example, the spouse was forced or pressured by unrealistic timelines.
  2. Coercion: a party took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress. For example, a spouse used threats, manipulation or a position of power to achieve an unfair agreement.
  3. Unconscionability: the agreement is obviously and seriously unfair to a spouse and it would be unconscionable to enforce it.
  4. False Information: a party signed the agreement based on false information provided by the other spouse.
  5. Lack of Independent Legal Advice: a spouse signed the agreement without independent legal advice. However, this is not determinative as parties can sign these agreements without a lawyer in BC. 
  6. Mistake: a spouse did not fully understand the nature or consequences of the agreement.
  7. Fraud: a spouse only signed the agreement because the other spouse misrepresented what the agreement was about.
  8. Failure to make full disclosure: a spouse signed the agreement without full disclosure of significant property and debts, or other information relevant to the negotiation of the agreement. 
  9. Other circumstances that would, under the law, cause all or part of an agreement to be voidable.

In the above circumstances, a court can vary the terms of an agreement or set aside the entire agreement. If the evidence does not establish one of these defects then generally the agreement will stand.

Even if none of the above-mentioned circumstances existed, the court may still intervene to preserve fairness. The court will set aside or replace the agreement if it finds it to be “significantly unfair” under the Family Law Act on consideration of the following factors:

  1. the length of time that has passed since the agreement was made;
  2. the intention of the spouses in making the agreement, to achieve certainty; or
  3. the degree to which the spouses relied on the terms of the agreement.

Even if one of the above-mentioned circumstances is established, the court may still require more evidence that a spouse exploited the vulnerable spouse and, as a result, obtained an agreement that departs significantly from a fair agreement. A court can decline to set aside a prenuptial agreement if, having regard to all of the evidence, it would not replace the agreement with an order that substantially differs from the agreement. 

To avoid potential challenges to your prenuptial agreement or cohabitation agreement, contact one of the family lawyers at Crossroads Law. Knowing how much you will pay up front is reassuring and we offer flat rate cohabitation and prenuptial agreements.  

By Marcus Sixta