In British Columbia, prenuptial and postnuptial agreements (known as marital agreements), allow couples to set terms for spousal support in the event of separation, providing certainty and helping avoid court involvement.  These agreements can outline whether support will be paid, the amount, and for how long. However, to be enforceable, they must meet certain legal standards and, and courts have the power to set them aside under specific circumstances.

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Common Grounds for Challenging Spousal Support Provisions

Courts may set aside a spousal support agreement if:

• ‍Lack of Full Disclosure: Both spouses must fully disclose their financial situations.  Failing to do so could result in the agreement being invalidated.‍
• Coercion or Duress: If one spouse was pressured into signing the agreement.‍
• Lack of Understanding: If a spouse did not fully understand the agreement, particularly if they did not obtain independent legal advice.‍
• Unfair Terms: Agreements that are grossly one-sided or unfair may not be enforced.

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Further, the Family Law Act in BC and the federal Divorce Act place limits on how much these agreements can restrict spousal support. A waiver will typically be enforced unless it is determined to be “significantly unfair” under section 164 of the Family Law Act, or “substantially not in compliance” with the Divorce Act.

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“Significant Unfairness”

Even if a marital agreement was fair when signed, courts in BC may set it aside if it becomes “significantly unfair”.  This could happen if there are changes in circumstances, such as a shift in income, health, or financial needs.  When determining whether an agreement is significantly unfair, courts will consider factors such as the length of time since the agreement was made, changes in the condition, means, or needs of either spouse, and whether the agreement meets the objectives of spousal support under section 161 of the Family Law Act.

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"Substantially Not in Compliance"

For married couples, the Divorce Act allows courts to override agreements that do not align with its spousal support objectives.  The Supreme Court of Canada’s decision in Miglin v. Miglin, 2003 SCC 24, set a framework for evaluating agreements, considering factors like fairness at the time of signing, and whether the agreement continues to meet the couple’s intentions and the Divorce Act’s objectives.

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Marital agreements offer a practical way for couples to settle spousal support issues privately and avoid litigation, but they must be carefully drafted to ensure fairness and legal enforceability.  Given the complexities involved, seeking legal advice when preparing or reviewing these agreements can help ensure they meet your needs and stand up to scrutiny.

If you’re considering a prenuptial or postnuptial agreement, or if you’re facing a dispute over spousal support, our experienced family law team is here to help.  Contact us for personalized advice to ensure your rights are protected.

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