If you’re wondering “Are prenuptial agreements enforceable?” in Family Law Act (S.B.C. 2011, c.25) (British Columbia), you’re not alone. Many couples want clarity and protection before marrying, but the question of enforceability is critical. In this guide, we’ll walk through what makes a prenuptial (or “marriage” or “domestic”) agreement enforceable, what can cause it to fail, and how you can give yours the strongest chance of holding up, especially under BC law.
What Is a Prenuptial Agreement?
A prenuptial agreement (often called a “prenup”) is a contract made between two people before (or sometimes during) marriage or a marriage‑like relationship, setting out how property, debt, and sometimes spousal support might be handled in the event of separation or divorce.
In BC, the term more commonly used is “agreement respecting property division or spousal support” under the Family Law Act.
Why it matters: Without such an agreement, the default rules of the Family Law Act will govern property division, spousal support, and so on. A prenup gives choice and certainty.
Why enforceability matters
Even if you sign a prenup, it might later be set aside (i.e., treated as invalid) by a court if certain legal requirements are not met. A contract that looks like a prenup but fails key legal tests may leave you exposed to the default regime. For couples with significant assets, business interests, prior debt, or children from previous relationships, the enforceability question becomes crucial.
Legal Framework in BC
Here are core statutes and rules you need to know:
- The Family Law Act, S.B.C. 2011, c. 25 governs property, debt, and spousal support for married and common‑law couples in BC.
- Section 92(1) of the Act says spouses may make agreements respecting division of property or debt, including unequal division, exclusion of items, and different valuations.
- Section 93 sets out when a court may set aside or replace such an agreement.
Bottom line: Yes, prenuptial agreements can be enforceable in BC if properly drafted and executed.
Key Requirements for Enforceability
To give your prenup the best chance of being enforceable in BC, consider the following must-haves:
| Requirement | Why it matters |
|---|---|
| In writing and signed by both parties | A verbal agreement will not suffice. |
| Full financial disclosure | If one party hides assets or fails to provide information, the court may set aside the agreement. |
| Voluntary entry (no duress, undue influence) | If someone was pressured, the agreement is vulnerable. |
| Independent legal advice (each party) | While not always strictly mandated in statute, it strongly supports enforceability. |
| Terms that comply with the law and are not significantly unfair | The court may override if the agreement is grossly one-sided. |
Even if all requirements are met, a court retains discretion under s. 93 of the Family Law Act to replace or set aside the agreement if it is significantly unfair.
Common Challenges and Why Agreements Are Overturned
Even well-intentioned prenups can fail if one or more of the following issues arise:
- One spouse did not fully disclose assets, income, or debts.
- The agreement was signed under duress, at the last minute, or without proper time to reflect.
- One spouse did not understand the nature or consequences of the agreement.
- The agreement is grossly unfair at the time of enforcement.
- The agreement attempts to bind child-support or custody issues in a way that conflicts with the best interests of the children.
- The agreement was drafted without reference to BC’s statutory regime and fails to align with the Family Law Act or Divorce Act.
Practical Steps to Draft an Enforceable Prenup in BC
Here’s a practical checklist for couples in British Columbia:
- Begin early. Allow both parties time to review and negotiate.
- Compile full disclosure. Document all assets, debts, incomes, and inheritances.
- Obtain independent legal advice. Each spouse should consult their own family lawyer who can prepare a Certificate of Independent Legal Advice.
- Write the agreement. Formalise it in writing, signed by both parties. Consider including a witness or notarisation.
- Ensure voluntary signing. Confirm both parties agree freely, without pressure or urgent deadlines.
- Review fairness and future risk. Consider scenarios such as children, career interruption, disability, or business growth.
- Include amendment or review clause. Life changes, and you may later wish to update the agreement. The law permits post-nuptial or marriage agreements too.
By following this process, you greatly increase the chance that the agreement will be enforceable.
Example Scenarios
Scenario A – Good outcome
Alice has a successful business. She and Bob decide to marry. They each gather financial disclosures, hire separate lawyers, and draft a prenup two months before the wedding that clarifies how Alice’s business will be treated, how debt will be managed, and how increases in value will be shared. Later, they divorce. Because the agreement meets the key requirements, the court upholds it under the Family Law Act.
Scenario B – Agreement is challenged
Carol enters a prenup with David only a day before the wedding after being told “sign it or we won’t get married.” Carol did not have her own lawyer and did not know the full value of David’s assets. They separate years later. The court finds undue influence and lack of disclosure, and sets aside the agreement in part. Default property division rules apply.
What Enforceability Does Not Guarantee
- A prenup does not guarantee that all its terms will be enforced if they conflict with statutory rights or are deemed significantly unfair.
- You cannot contract away child support or custody rights if the result conflicts with the children’s best interests.
- If you move between provinces or countries, enforceability may depend on the laws of the new jurisdiction.
Protect Your Marriage with Freedom Family Law
Drafting a legally enforceable prenuptial agreement can be complex. Freedom Family Law specializes in family law services across British Columbia, helping couples ensure their agreements are fair, clear, and enforceable. Our experienced lawyers provide personalized legal advice, full disclosure guidance, and independent review to safeguard your rights and your future.
Contact Freedom Family Law today to schedule a consultation and make sure your prenuptial agreement is fully enforceable under BC law. Protect your marriage and your assets with confidence.
Conclusion
So, are prenuptial agreements enforceable? Yes, in British Columbia they can be provided they are properly drafted, signed freely, backed by full disclosure and independent advice, and are not significantly unfair. They offer couples control over how property and support are handled, rather than relying solely on default statutory rules.
However, they are not bulletproof. A poorly drafted, rushed, or one-sided agreement may be overturned. To maximise enforceability, plan ahead, involve qualified family-law counsel, and be transparent with each other.
If you’re considering one, it is wise to consult a BC family lawyer to draft a tailored agreement and review your specific situation.
Success Stories
⭐️⭐️⭐️⭐️⭐️ Mathais Sarrazin was excellent to work with. He delivered exactly what he promised on time and kept me updated every step of the way. His follow-ups and prompt replies meant I never had to wonder what was happening. He is hardworking, patient, and very knowledgeable, always looking at the situation from a holistic perspective to give the best support. With his professionalism and great manner, I felt fully supported throughout the process. Highly recommended!
⭐️⭐️⭐️⭐️⭐️ I had the pleasure of working with Mathais as my family lawyer, and I couldn’t have asked for a better experience. He was absolutely amazing; clear, timely, and incredibly informative throughout the entire process. Mathais took the time to explain everything in a way that made sense, always making sure I felt confident and well-informed before moving forward. I truly appreciate his support and would highly recommend him to anyone looking for a trustworthy and knowledgeable family lawyer.
⭐️⭐️⭐️⭐️⭐️ I had a great experience working with Mathais and his firm! Mathais was incredibly helpful, clear, and informative throughout the entire process. I felt well-supported and confident in every step thanks to his guidance. I highly recommend Freedom Family Law’s services to anyone in need of legal assistance!
Frequently Asked Questions
1. What is a prenuptial agreement?
A prenuptial agreement is a legal contract signed by a couple before marriage outlining the division of assets, debts, and spousal support in case of divorce or separation.
2. Are prenuptial agreements enforceable?
Yes, prenuptial agreements are generally enforceable if they are entered voluntarily, with full disclosure of assets, and are fair and reasonable under the law.
3. Can a court invalidate a prenuptial agreement?
Yes. A court can invalidate a prenup if it was signed under duress, fraud, coercion, or if it contains illegal provisions or is extremely unfair to one spouse.
4. Do prenuptial agreements cover child custody or support?
No. Prenuptial agreements cannot legally determine child custody or child support, as these decisions are made based on the child’s best interests at the time of divorce.
5. Do both parties need a lawyer for a prenup?
While not always required, it is strongly recommended that each party has independent legal counsel to ensure the agreement is fair and enforceable.
6. Can a prenup be modified after marriage?
Yes. Couples can modify a prenuptial agreement after marriage through a postnuptial agreement, provided both parties voluntarily agree and it complies with legal requirements.
7. Does a prenup protect business assets?
Yes. A prenuptial agreement can protect business assets and clarify ownership, management rights, and division of profits in case of divorce.
8. Is full disclosure of assets required for a prenup?
Yes. Both parties must fully disclose their assets and debts; hiding property or income can render the agreement unenforceable.
9. Can a prenup include spousal support terms?
Yes. Prenuptial agreements can include provisions for spousal support or waive it, as long as it does not violate public policy or legal standards.
10. When should a prenuptial agreement be signed?
A prenuptial agreement should be signed well before the wedding, giving both parties sufficient time to review the terms and consult legal counsel.
About the Author – Mathais Sarrazin
Mathais Sarrazin is the founder and principal lawyer at Freedom Family Law in British Columbia. A graduate of UVic Law (2012) and a proud member of the BC Bar since 2013, Mathais brings over a decade of experience helping couples and families protect what matters most.
Before founding Freedom Family Law, Mathais gained extensive courtroom experience in both criminal defense and family law, running Supreme Court trials within months of being called to the bar. That early exposure taught him one crucial lesson — many family disputes are preventable with the right planning and communication.
Today, Mathais focuses on helping BC couples create strong, transparent agreements that protect their rights, assets, and relationships. His approach is personal, responsive, and client-focused — he takes the time to understand each couple’s unique situation and offers flat-rate, transparent pricing to eliminate surprises.
When he’s not helping clients, Mathais enjoys spending time with his family and living the balanced lifestyle he encourages his clients to achieve.
💬 Contact Mathais Sarrazin at Freedom Family Law to book your consultation and start protecting your future today.