Family Agreements
A prenuptial agreement in BC sets your own property rules before or during the marriage
Raising a prenup can feel awkward. It is ordinary financial planning: deciding now how a home, a business or family money would be treated, then making the will and the title say the same thing.
The short answer
Most people say prenup; BC lawyers say marriage agreement, and the version signed after the wedding gets called a postnuptial agreement. Whatever the name, it is a written contract that sets, ahead of time, how property and debt would be divided and whether spousal support would be paid if the marriage ended.
It can't bind everything. Parenting arrangements agreed before separation are not binding, and a court can replace child support set below the Federal Child Support Guidelines (Family Law Act s. 44 and s. 148). What helps the rest hold is plain: it is in writing, both spouses sign it, each signature is witnessed, both make full financial disclosure, and each has their own lawyer.
One more document needs attention: the will. Under BC's Wills, Estates and Succession Act, marriage doesn't cancel an existing will, so the will needs its own review to make sure it matches the agreement on the home and any family money.
updated October 19, 2026
Is a marriage agreement the same as a prenup?
Yes. Prenup, prenuptial agreement and marriage agreement all describe the same document, and a postnuptial agreement is the same thing signed after the wedding. BC's Family Law Act doesn't treat them as different kinds of agreement. It applies one set of rules to an agreement between spouses, whether they signed it before the marriage or during it.
A cohabitation agreement signed before the wedding can do the same job if it was written to continue after marriage; the cohabitation agreements page explains how.
Is a prenup legally binding in BC?
Yes, if it meets the Family Law Act's formalities: in writing, signed by both spouses, and each signature witnessed. A court can still set aside or replace property terms that have become significantly unfair (s. 93), and spousal support terms on similar grounds (s. 164), but it starts from respect for a bargain both spouses made knowingly.
The fairness test looks at the agreement in light of what happened after signing: how long ago it was made, how much the spouses wanted certainty, and how far they have relied on it. An agreement that planned for likely changes (children, a career break, a business sale) stands on firmer ground than one that assumed nothing would change.
How the agreement was made is a separate question: disclosure, pressure, and whether each spouse understood it. In Hartshorne v. Hartshorne, a BC case, the Supreme Court of Canada gave real weight to a marriage agreement made with full information and legal advice on both sides.
What can a marriage agreement protect?
A marriage agreement can change how the Family Law Act treats almost any asset: a home owned before the marriage and its growth in value, a business or shares, an expected inheritance, money from parents toward a down payment, and property outside Canada. For each one, it replaces the Act's default rule with terms the spouses chose.
- A home owned before the relationship: by default its starting value is excluded but growth during the relationship is shared equally. The agreement can exclude the growth, share part of it, or set a formula.
- A business or shares: the same default applies to growth. The agreement can keep the business out, fix a valuation method, or provide for a buyout.
- An expected inheritance: excluded by default, but it can lose that protection once mixed into a joint account or a jointly owned home. The agreement can keep it out, with its growth and whatever it buys.
- Parents' money toward a down payment: a gift to one spouse is generally excluded property, while a loan is a debt to be repaid. The agreement can record which it is and how it is treated.
- Property outside Canada: the Act counts it, but a BC agreement may not be recognized where the property sits, so local advice may be needed.
What can't a marriage agreement decide?
A marriage agreement can't settle in advance how future children will be raised or supported. Parenting terms made before separation don't bind under the Family Law Act (s. 44), child support is measured against the Federal Child Support Guidelines (s. 148), and no clause can take away a court's power to act in a child's best interests.
Wishes about religion, schooling or the language children will speak can be recorded as a statement of intent, and a court may consider them, but they don't bind a court deciding parenting after a separation. The property and support terms still stand.
How far ahead of the wedding should we start a marriage agreement?
Start early enough that every stage finishes well before the wedding, and plan it backwards from the date. Signing comes last, after each spouse's independent advice, which follows the other lawyer's review of the draft, which follows disclosure. Disclosure usually takes the longest, so it should start first, as soon as you decide to have an agreement.
- The wedding date: the fixed point, with a margin left after signing.
- Signing: each spouse signs before a witness, usually their own lawyer, who also signs a certificate of independent legal advice.
- Independent advice: each spouse goes through the final version alone with their own lawyer.
- Review: the second lawyer checks the draft against the disclosure and negotiates changes, usually over at least one round.
- Draft: the first lawyer writes the agreement from the settled terms, including what happens if a child is born or one spouse stops working.
- Disclosure: both spouses exchange income records, statements, valuations and a list of debts. This is the starting line.
Can we sign a marriage agreement after we're married?
Yes. An agreement signed during the marriage follows the same Family Law Act rules as one signed before it, and the same safeguards apply: full disclosure and separate legal advice. Couples sign one after the wedding when a business starts, an inheritance arrives, or the time before the wedding ran short.
The inventory starts in the past. The relationship began on the earlier of the wedding or the date you began living together in a marriage-like relationship, and records from that date (account statements, a mortgage statement, a home's assessment) separate what each brought in from what has grown since.
If time before a wedding is too tight, this is the sensible alternative to rushing: marry, then finish the agreement properly.
Do we need new wills when we marry?
Not because of the wedding. Under the Wills, Estates and Succession Act, marriage no longer revokes a will in BC, so an existing will stays in force. That is the reason to review it: a will written before the marriage may leave the home to someone else, or ignore the agreement. The two documents should say the same thing.
Before WESA came into force on 31 March 2014, marriage generally revoked an existing will, so someone who married before that date may find an earlier will no longer stands. Title matters too: a joint tenancy passes to the survivor outside the will, a tenancy in common share passes under it, and all three documents should point the same way.
Common questions
Do both of us need our own lawyer for a prenup?
The Family Law Act doesn't strictly require it, but in practice yes. One lawyer can't act for both of you, because the agreement trades rights between you. Separate advice is also the clearest answer to any later claim that a spouse didn't understand what they signed, which a court looks at if someone asks to set the agreement aside.
Can a prenup say neither of us will pay spousal support?
It can include a waiver of spousal support, and many do. A court can still set aside or replace support terms under s. 164 of the Family Law Act, looking at how circumstances have changed and whether the terms have become significantly unfair. A waiver that anticipates children, a career pause or illness, and says how those change the outcome, holds up better than a flat waiver.
Does a marriage agreement cover property we own outside Canada?
It can. The Family Law Act counts family property wherever it is located, so a BC agreement can say who keeps a foreign property or how its value is shared. Whether a court or land registry in that country will give effect to the agreement depends on local law, so advice from a lawyer there is often needed.
We signed a marriage agreement before 2013. Does it still apply?
Usually, yes. Agreements made under the former Family Relations Act carried over when the Family Law Act came into force on 18 March 2013, but the old Act used different categories and a different test for unfairness. Which rules apply depends on the transition provisions and the wording of the agreement, so an older agreement deserves a review.
My parents are helping with the down payment. Can the agreement protect that money?
Your parents aren't parties, so the agreement can't bind them, but it can say how the money is treated between the two of you. A gift to one spouse is generally excluded property; a loan is a debt to be repaid. Record which it is when the money moves (a gift letter, or a loan agreement and possibly a registered mortgage) and make the agreement match.
What happens to the agreement if we have children later?
The property terms usually carry on unchanged. Spousal support terms may come under pressure if one spouse steps back from work to care for children, which is why many agreements include a clause that changes or reopens support when a child is born. Parenting and child support are decided at separation in any case, whatever the agreement said.
Can we change or cancel a marriage agreement later?
Yes. The spouses can amend or end it by a new written agreement, signed by both and witnessed, ideally with fresh disclosure and separate advice. Tearing up the original or agreeing to ignore it isn't enough. An agreement that already provides for a review at a set point, such as a child's birth or a business sale, makes later changes simpler.
Planning a marriage agreement around a wedding date?
A short call is usually enough to tell you what's involved, what it will take, and whether you need us at all.