Make an Enforceable BC Prenuptial Agreement in 5 Easy Steps
Planning your wedding involves many exciting decisions. Alongside choosing venues and guest lists, considering a Prenuptial Agreement (or “prenup”) is a practical step for many couples. A prenup allows you to proactively agree on how financial matters, like property and support, would be handled if your marriage were to end, providing clarity and security for both partners. However, for a prenup to be effective, it must be enforceable under British Columbia law. A poorly prepared agreement can be challenged and potentially overturned by a court, defeating its purpose. While the process requires careful attention to detail, following these five key steps will greatly increase the likelihood that your BC prenup will be legally sound and upheld. In this post we’ll go over how to make an enforceable BC Prenuptial Agreement in 5 easy steps:
Step 1: One Partner Hires an Experienced Family Lawyer to Draft the Agreement
The process typically begins with one partner engaging a lawyer experienced in BC family law to prepare the initial draft of the prenuptial agreement. This lawyer acts only for the client who hired them. They will discuss their client’s financial situation, goals, and desired terms for the agreement, ensuring these are accurately reflected in the legal document and comply with BC’s Family Law Act (FLA).
Step 2: Provide Full and Honest Financial Disclosure
This step is absolutely critical for enforceability, regardless of who drafts the agreement. Both partners must provide complete, accurate, and truthful disclosure of their significant assets (property, accounts, investments, business interests, pensions, etc.), debts (mortgages, loans, credit cards), and income before the agreement is finalized. The drafting lawyer will usually facilitate the exchange of this information. Concealing assets or misleading the other party about your financial situation is a major reason courts may set aside prenuptial agreements. Gather your financial documents thoroughly.
Step 3: The Other Partner Has the Draft Independently Reviewed
Once the initial draft is prepared by the first partner’s lawyer, it is provided to the other partner. It is essential that the second partner takes this draft to their own, separate family lawyer for a detailed review. This lawyer, representing only the second partner, will analyze the draft, explain its terms and consequences, compare it to the default provisions of the FLA, and advise their client on whether it aligns with their understanding and interests. They can suggest revisions if necessary, which would then be communicated back to the drafting lawyer through their client. While not a formal back-and-forth negotiation between lawyers in the traditional sense, this ensures both parties, through their respective counsel, understand and contribute to the final terms.
Step 4: Obtain Formal Independent Legal Advice (ILA)
This is a distinct and crucial step, particularly for the partner who did not initially draft the agreement. Before signing the final version, both partners must meet separately with their respective lawyers to receive formal Independent Legal Advice (ILA). During this meeting, your lawyer will confirm that you fully understand:
- The agreement’s content and what it means legally.
- Your rights and obligations under the agreement.
- How these differ from your potential rights and obligations under the Family Law Act if you didn’t have the agreement.
- That you are signing voluntarily and without pressure.
Each lawyer will typically sign a certificate confirming they provided this advice. ILA is a cornerstone of ensuring a prenup is considered fair and enforceable in BC courts.
Step 5: Formal Signing (Execution) with Witnesses
With full disclosure completed, the terms agreed upon, and ILA received by both partners, the final step is signing the agreement. The prenup must be in writing. Both partners must sign it, and each signature must be witnessed. It is standard practice and highly recommended to have each signature witnessed by an independent adult (this is often done at the respective lawyers’ offices). Witnessing provides proof of proper execution. Ensure both you and your partner receive a complete, original signed copy of the agreement for your records.
The Goal: A Fair and Enforceable Agreement
Following these steps carefully – ensuring one lawyer drafts for their client, the other party gets thorough independent review and advice, full financial disclosure occurs, and formal ILA is obtained before signing – creates a process recognized by BC courts as fair. It leads to an agreement that both parties understand and agree to, minimizing the risk of future disputes and providing reliable protection and peace of mind as you embark on your married life.
Disclaimer: This blog post provides general information only and does not constitute legal advice. Laws, interpretations, and court practices can change. You should consult with a qualified BC family lawyer to discuss your specific situation and receive tailored legal advice regarding prenuptial or cohabitation agreements. Set up a free 15 minute call here.