Post-Nups in BC: Protecting Your Assets After Marriage

Key Takeaways

• A post-nup (postnuptial agreement) is a contract spouses sign after they are already married or living common-law, setting out how property, debt, and support would be handled if they separate.
• The main difference from a prenup is timing: a prenup is signed before the relationship, a post-nup after.
• In BC, couples can agree on property division, excluded property and debt, and spousal support, but cannot decide child support or parenting arrangements in advance.
• A post-nup is not guaranteed to last forever. Courts can set it aside for a material change in circumstances, poor financial disclosure, duress, or a lack of independent legal advice.
• The best way to make a post-nup hold up is for both spouses to get independent legal advice before signing.

What is a post-nup and why would spouses enter into one?

A post-nup, short for “postnuptial agreement”, is an agreement for couples that are still together and have already entered into a marriage or a marriage-like relationship. The parties can enter into a post-nup at any time during their marriage or marriage-like relationship.

A post-nup is an agreement that spouses can voluntarily enter into to determine all of their family law issues if they were to ever separate, before separation occurs. It can also contain terms relating to if one of the spouses pre-deceases the other. A post-nup serves as confirmation of the intention of the parties and can serve as the basis for terms of a separation agreement if the couple decides to separate. If a- court finds that the post-nup is valid and enforceable, a post-nup can be upheld and enforced by the court even if it deviates from the “default” provisions of applicable family law legislation like the Family Law Act.

A post-nup can provide clarity and comfort to spouses so that, in the (hopefully) unlikely event of separation, they have a better idea of what legal entitlements to expect. Many couples also benefit from entering into a post-nup because it’s a good opportunity for each spouse to communicate to the other their expectations and needs for both during and after the relationship. Through negotiating the terms of the agreement, each spouse must ask the other what could be difficult or uncomfortable questions about what they would want to happen in the event of a relationship breakdown.

What is the difference between a pre-nup and a post-nup?

What is a prenup? A prenup is a legal contract signed before marriage.

The main difference between a pre-nup and a post-nup is that, in the case of a prenup, the parties are not yet in a marriage or marriage-like relationship. If the parties haven’t entered into a pre-nup or cohabitation agreement before becoming “common-law” spouses or married spouses, then the Family Law Act and other applicable legislation already applies to them and their property. That means that the post-nup agreement’s terms are changing the current status quo of the parties and that both agree to modify what would have been their entitlement under applicable legislation.

👉 Learn what mistakes to avoid when crafting a pre-nuptial agreement here

What are some things that couples can agree to in a post-nup?

Most areas of family law can be addressed by a post-nuputial agreement in BC. A couple can agree to terms such as:

• what property is excluded property that belongs to only one spouse and that, in the event of separation, would not be divided between the spouses;
• what debt is excluded debt that is owed only by one spouse and that, in the event of separation, would only be owed by that spouse;
• what property is family property that, in the event of separation, would be divided between the spouses;
• what debt is family debt that, in the event of separation, would be divided and owed by both spouses;
• whether the spouses waive or agree to provide each other with spousal support in the event of separation;
• confirming whether any sacrifices made by one spouse for the benefit of the other are to be compensated; and
• whether or not the spouses agree to try and resolve any disputes by mediation or some other dispute resolution process before commencing any legal proceedings in court.

What are some things that couples cannot agree to in a post-nup in BC?

One major area of family law that couples cannot enter into an agreement about prior to separation is child support and parenting arrangements. The reason for this is that terms relating to children must be based on the best interests of the children, and this cannot be determined years in advance.

Parties cannot contract out of paying child support, as support payments are the right of the child and not of the parent. The children’s best interests must be determined at the time of separation and support payments must reflect the parents’ incomes at the time of separation, which is impossible to predict with certainty in advance.

👉 Read about how to avoid signing an unfair separation agreement here

Is a post-nup agreement in BC guaranteed to be enforceable forever?

No post-nup agreement is guaranteed to be enforceable forever. The biggest reasons for courts to set aside a post-nup are:

• if there is a material change in circumstances since the parties entered into the agreement that was not contemplated at the time of entering into the agreement;
• if there wasn’t sufficient disclosure (such as financial disclosure) so that the parties weren’t clear on what they were agreeing to;
• if one of the parties was vulnerable or signed under duress such that that spouse did not enter into the post-nup freely; and
• if one or both of the parties did not receive independent legal advice such that one or both of them did not sign with full understanding of what they were agreeing to.

Even if the parties fully agree and intend to be bound by the post-nup at the time of signing it, what is fair and reasonable to spouses with similar incomes that have been married for 4 years and don’t have children may not be fair in 20 years when one spouse has a much higher income and the other spouse has deprioritized their career to be the primary caregiver of the children. The more unforeseen material changes in circumstances there are, the less likely it is that the entire agreement is upheld by the court.

One way to assess the likelihood of your post-nup in BC being set aside by the court is to get legal advice before you sign anything.

Frequently Asked Questions

• What is a post-nup in BC? A post-nup, or postnuptial agreement, is a contract that spouses sign after they are already married or in a marriage-like relationship. It sets out how they would divide property, debt, and spousal support if they ever separated, giving both people clarity and protection in advance.
• What is the difference between a prenup and a post-nup? The difference is timing. A prenup is signed before a couple marries or lives together, while a post-nup is signed after the relationship has already begun. Because the Family Law Act already applies once you are spouses, a post-nup changes the default rules that would otherwise govern your property and support.
• Are post-nuptial agreements enforceable in BC? Yes, a post-nup can be enforced by a BC court, even if it differs from the default rules in the Family Law Act, as long as it is valid. However, a court can set it aside if there was inadequate financial disclosure, duress, no independent legal advice, or a significant unforeseen change in circumstances.
• Can a post-nup include child support or parenting arrangements? No. In BC, couples cannot decide child support or parenting arrangements in a post-nup. Child support is the right of the child, not the parents, and parenting must be based on the child’s best interests at the time of separation, which cannot be predicted years in advance.
• Can you get a post-nup after you are already married? Yes. That is exactly what a post-nup is for. Couples can enter into one at any point during their marriage or marriage-like relationship, whether they have been together for one year or twenty.
• Do you need a lawyer for a post-nup in BC? You are not legally required to have one, but independent legal advice for each spouse is one of the most important factors in whether a court will uphold the agreement. A lawyer also makes sure the disclosure is proper and the terms are fair and enforceable.

Getting Legal Advice

If you are thinking about entering into a post-nup agreement in BC with your spouse, speaking with a family lawyer early in the process can help you understand your rights and options. A lawyer can advise you on:

• Whether you and your partner are considered to be spouses under the Family Law Act if you are not married;
• What your legal entitlements may currently be if you were to separate from your partner today;
• What to discuss with your partner if you want to suggest entering into a post-nup;
• Drafting a post-nup based on terms that you and your partner have agreed to enter into; and
• Reviewing a post-nup that your partner has asked that you enter into and providing you with independent legal advice on it.

Our family law team in Vancouver, Chilliwack, and Langley has extensive experience helping couples navigate agreements such as post-nup agreements. We can review your documentation, explain your possible entitlements, and provide strategic advice on the best path forward.

To book a consultation with our award-winning family lawyers about any marital support, prenup or post-nup agreements, call us at 604-9749529 or get in touch. 

This blog written by our brilliant family lawyer Negin Alavi

Our Lawyers

Negin Alavi

Family Lawyer | Civil Litigation Lawyer

[email protected]