Generally speaking, properly drafted and executed pre-nuptial agreements are legally binding in British Columbia.
Pre-nuptial agreements could be set aside by a court if:
- There has not been full disclosure made about assets, liabilities and income
- One spouse took improper advantage of the other spouse’s vulnerability, including their ignorance, need or distress
- One spouse did not understand the nature or consequences of the agreement – for example, no legal advice has been given to the person on their rights and obligations under the agreement
- The agreement operates so unfairly that a court will want to set it aside
If you are thinking about a pre-nuptial agreement, you will need to make full disclosure of your assets, liabilities and income as part of the negotiation process. Your partner will need to obtain independent legal advice on the agreement prior to signing and it is best if that lawyer provides a Certificate of Independent Legal Advice which confirms that:
- They reviewed the agreement with the other side
- They provided the other side with legal advice on the agreement and how it departs from the Family Law Act or Divorce Act
- They confirm that the agreement was signed by the other side of their own free will and not under any duress or pressure from the drafting party.