A marriage agreement made before a wedding, or a marriage contract made during one, follows the same law in BC — and the same law that makes it enforceable is also what can unravel it, if it’s not built correctly from the start.
What BC Law Calls These Agreements
Under BC’s Family Law Act (SBC 2011, c. 25), what’s commonly called a “prenup” is legally a marriage agreement. Section 92 allows spouses to contract out of the default equal-division rules for property and debt before or during the marriage — dividing property unequally, excluding certain assets entirely, or valuing them differently than the Act otherwise would. Spousal support terms are addressed separately, under section 163, which specifically allows spouses to agree on spousal support terms.
This split matters more than it looks: property terms and spousal support terms are challenged under two different tests within the Act, so an agreement can be perfectly solid on one front and vulnerable on the other.
What Makes an Agreement Enforceable
To hold up, a marriage agreement generally needs to be:
In writing, signed by both spouses, with at least one witness Entered into freely, without pressure, coercion, or undue influence Backed by full and honest financial disclosure from both spouses Negotiated with each spouse understanding what they were agreeing to
A signed, witnessed agreement is presumptively binding — under section 94(2), a court won’t redivide property covered by a valid agreement unless the agreement is set aside first.
When Agreements Get Set Aside
For property terms, section 93 allows a court to set aside or replace a marriage agreement where a spouse failed to disclose significant property or debt, where one spouse took improper advantage of the other, or where enforcing the agreement would be “significantly unfair” — a higher bar than simple unfairness, but not an impossible one. Courts also weigh how much time has passed since the agreement was signed, and how much the spouses have relied on it since.
For spousal support terms, section 164 sets out its own, separate grounds — largely mirroring section 93 (non-disclosure, taking improper advantage, a spouse not understanding the agreement, or significant unfairness), but assessed independently against the support-specific objectives in section 161. This is why a court can, in the same case, uphold an agreement’s property division while setting aside only its spousal support terms — as happened in De Medeiros v. Hodgson, 2018 BCSC 408, where the property terms stood but the spousal support terms were set aside for incomplete income disclosure.
What a Marriage Agreement Can’t Do
Child support and parenting arrangements can be addressed in a marriage agreement, but both remain fully subject to court review based on the child’s best interests — no agreement can waive or predetermine them.
Why Independent Advice Matters, Even Where It’s Not Mandatory
Independent legal advice isn’t strictly required in BC, but its absence is one of the clearest factors a court weighs when an agreement is later challenged under either section 93 or 164 — each spouse having their own lawyer is one of the strongest signals that the agreement was entered into fairly.
How Katrina Berube Law Handles Your Agreement
Built for both statutory tests — drafted with the actual legal standards in section 93 (property) and section 164 (spousal support) in mind, not just a general sense of fairness.
Full disclosure documented — both spouses’ financial pictures are captured and recorded as part of the process, not assumed or left informal.
Independent advice built in — where you’re the spouse being asked to sign, or the spouse proposing the agreement, we ensure the advice component is handled properly on both sides.
Timed to avoid duress claims — agreements are completed with enough time before a wedding date to avoid the appearance of last-minute pressure.
Serving Vancouver and clients across all of BC, Katrina Berube Law drafts marriage agreements built to protect what you bring into a marriage, and to still be standing years after it’s signed.