Marriage is about love, but it also involves legal and financial ties that can substantially impact your life, irrespective of your income level or wealth. A well-drafted prenuptial agreement can provide protection, clarity, and peace of mind for both spouses.
A prenuptial agreement is meant to crystallize rights and obligations and promote fairness in the event of a divorce. But what if your agreement is no longer fair? What if changing circumstances and big life events make it so the agreement no longer fits your relationship? If you find yourself in a situation like that, it’s possible to change some or all of the agreement.
Working with a family lawyer is the best way to protect yourself and what’s important to you. The experienced family law attorneys at Onyx Law Group have a deep understanding of the legal issues and challenges that can arise in marriage and divorce. We can help you prepare or modify a written prenuptial agreement so that it’s tailored to your needs, goals, and circumstances. Reach out to us today for a consultation with one of our dedicated family lawyers.
Today’s post will discuss reasons to change a prenuptial agreement and important issues such as how to make a revised agreement and how to go about prenuptial agreement cancellation. At the end of the post, we’ll answer some of the top FAQs about making and changing prenups in BC.
What Is a Prenuptial Agreement?
A prenuptial agreement is a legally binding contract that states how you and your spouse will deal with issues if your relationship ends. A typical prenup will address important matters such as property division, debt allocation, and alimony (a.k.a. spousal support). It can also contain your agreement about how you’ll deal with issues during your relationship, such as respective contributions to mortgage or other household expenses. A prenuptial agreement can’t deal with custody or access to children, nor can it deal with child support.
As mentioned above, prenups are not just for the wealthy. They’re a wise choice, regardless of the income level or wealth of the parties. That being said, such agreements are strongly recommended in certain situations (for example, second marriages, complex financial situations, or one party bringing more significant assets or debt into the relationship).
If you don’t have a legally binding contract in place and your marriage ends, you and your spouse can attempt to negotiate a separation agreement. The difficulty with waiting is that it’s often much more challenging to reach an agreement once your relationship has broken down. If you aren’t able to negotiate a separation agreement, you’ll need to ask the court to resolve the family law issues in dispute. The judge who decides your case must apply the default BC family law rules that dictate how property and debt are divided.
Legal Documents to Protect Rights and Clarify Obligations
This post uses the term “prenuptial agreement,” but these types of agreements are also referred to by other names, such as cohabitation agreement (for those in a common law relationship) or marriage contract. You and your partner can make an agreement before you start to live together or before you get married. You can also make an agreement at any time while you’re living together or during your marriage (the latter is a “postnuptial agreement”).
Legal Requirements for BC Prenups
To be legally binding in British Columbia, a prenuptial agreement must meet certain legal requirements. At its most basic, a prenuptial agreement should be in writing, signed by both parties, and witnessed.
Beyond those basic legal requirements, there are other important elements that make a prenuptial agreement legally valid and enforceable. An agreement may not be legally binding and can be set aside by the court if:
- One spouse or both spouses misrepresented their financial situation or failed to make full disclosure of financial matters (significant assets, debts, income, etc.)
- A spouse was pressured or coerced to sign the agreement (both must enter the agreement voluntarily)
- A spouse was not given enough time to review, understand, and negotiate the agreement before the marriage (e.g., a prenuptial agreement presented the morning of the wedding)
- The agreement does not comply with the BC Family Law Act and Canada’s Divorce Act (e.g., an online template agreement that is based on the laws of another province or state)
- One spouse took improper advantage of the other spouse’s vulnerability in terms of ignorance, need, or distress.
Independent legal advice is another key element. Strictly speaking, there is no legal requirement for parties to have independent legal representation and advice in British Columbia before signing a prenuptial agreement. However, an agreement signed without independent legal advice is more easily challenged.
Can You Change a Prenup After Marriage?
You can change your prenup after marriage, either by preparing a written amendment to your original contract (with all other terms of the initial prenup remaining in force), or by entering an entirely new agreement that replaces the initial prenup. As mentioned, an agreement entered into after marriage is called a postnuptial agreement.
Changes to a prenup must be made by mutual agreement of the parties. In other words, the parties involved must consent to a revised agreement. If you and your spouse can’t get on the same page, legal counsel can help you and your spouse negotiate a new agreement and put the new agreement in writing. Your existing agreement may also contain provisions for dispute resolution, so it’s important to review it carefully. For example, your initial prenup may require you and your spouse to mediate before asking the court to intervene. If you and your spouse are still not able to agree on changes, it will be necessary to apply to the courts for an order changing or setting aside some or all of the agreement.
When a Prenup Cannot Be Changed After Marriage
A prenup cannot be changed unilaterally. One party can’t decide on their own to change the terms of the agreement, nor can one party simply decide they no longer want to be legally bound by it. Furthermore, a prenup can’t be changed verbally. You and your spouse may talk and verbally agree on changes, but they are not legally binding until put in writing and properly executed. It’s also important to review your original contract if you are considering changes. It may contain terms or conditions that prohibit amendment.
Should you find yourself in circumstances where you can’t change your initial prenup, you should consider getting advice from legal counsel. They can offer creative solutions and help you explore alternative dispute resolution options. Your lawyer can also advise you on whether court proceedings are warranted to challenge or set aside your original contract on the specific grounds set out in the Family Law Act.
Note that a prenup can’t be changed after your marriage ends. When spouses have separated or are in the process of divorce, they must either negotiate a separation agreement or apply to court for an order resolving issues arising from the breakdown of their marriage.
Why Do Couples Decide to Modify Their Prenup?
Generally speaking, spouses modify their prenup to ensure it remains fair, up-to-date, and enforceable. Common reasons for modifying a prenuptial agreement include:
- Significant changes in financial circumstances:
- Receiving a significant inheritance
- Acquiring significant assets or debts
- Career change, promotion, or job loss
- Starting a business, or business growth/expansion
- Major life events:
- Birth or adoption of a child
- Retirement
- Disability, accident, or illness that impacts employment
- Moving to another province or a different country
- Changes in the relationship:
- Transitioning from cohabitation to legal marriage
- Reconciling after a period of separation
- Shift in wants, needs, goals, level of trust, etc.
Spouses may also want to update or amend their prenuptial agreement to address previously overlooked issues, or simply because they’re no longer happy with it.
Prenuptial Agreement Canceling vs. Modifying
Modifying an agreement means adding, removing, or altering some terms of the contract, while keeping all other terms intact. Cancelling an agreement means ending or revoking the contract in its entirety.
Prenuptial agreements can be “cancelled” by entering a new agreement. The new agreement should specifically refer to the original contract and state the parties’ shared intention to revoke it. Note that tearing up, burning, or shredding a prenup doesn’t automatically revoke it, nor does verbally agreeing with your spouse that you’ll no longer be bound by it.
What to Consider Before Changing a Prenup
The most important consideration is the legal implications of the proposed change(s). It’s essential to understand your existing rights and obligations and how they will differ as a result of any changes. Even a seemingly small change could have a significant, long-lasting impact on your financial situation.
Other important considerations include fairness, full disclosure of financial matters, and timing (for example, making sure each party has the opportunity to consult with independent legal counsel and think about the proposed changes).
How to Legally Change a Prenup Agreement
The same legal requirements that apply when making a legally binding prenup apply when it comes to changing a prenup. The revised agreement must be in writing, signed by both parties, and witnessed. Full disclosure of financial matters is necessary. Both parties must sign the agreement voluntarily.
While adhering to legal requirements is essential, amending a prenuptial agreement doesn’t have to be a complex process. These are the general steps in the amendment process:
- Honest communication: Have open discussions with your spouse about proposed changes and the reasons you want or need the changes.
- Consultation with experienced family law attorneys: Each spouse should obtain legal advice and guidance from independent legal counsel with family law experience.
- Negotiate and draft the amendment or new agreement.
- Execute the new or revised agreement in the presence of a witness.
Should the parties involved have difficulty getting on the same page, it will be a more complex process. Professional legal advice is crucial, and court intervention may be necessary.
Need Legal Representation to Modify a Prenuptial Agreement?
Protect yourself by consulting with a dedicated family lawyer at our British Columbia law firm before you agree to anything. Your lawyer can ensure you understand the legal implications of any changes and that you have received full disclosure, both of which are essential to the question of whether changes to your prenuptial agreement are fair.
Without an experienced family lawyer on your side, you may not be able to protect yourself, your assets, and your family. Onyx Law Group’s lawyers use detailed knowledge and years of experience to find creative approaches to even the most challenging legal situations.
We welcome you to contact Onyx Law Group today.
FAQs About Changing Prenups
Can One Spouse Change the Prenup Without the Other’s Consent?
No. Any change must be made by mutual consent or court order.
How Often Should a Prenup Be Reviewed or Updated?
It’s a good idea to review your prenup every so often to ensure it continues to fit your circumstances. You should also review and consider updating your agreement any time your circumstances change (you have children, your financial situation changes, one of you becomes ill, you start a new business or acquire new property, etc.).
What Makes a Prenup Invalid in Canada?
A prenup may be deemed invalid in several situations, for example, if it was signed under duress or without full financial disclosure. It’s also possible for parts of a prenup to be deemed invalid (e.g., a term containing a waiver of child support is not valid and can’t be enforced).
What Happens if You Don’t Update a Prenup When Circumstances Change?
A properly prepared prenuptial agreement will remain in force and legally binding unless and until it is modified by mutual agreement or varied/set aside by the courts.
How Enforceable Are Prenups in Canada?
Prenups are enforceable in BC and throughout Canada, provided they meet applicable legal requirements, which vary by province.
What Makes a Prenup Amendment or Postnup Valid?
Factors that make prenup amendments and postnuptial agreements legally valid include proper signing and witnessing, full financial disclosure, and independent legal advice.
Can a Judge Overturn or Reject a Prenup Amendment?
Yes. A judge can invalidate or overturn a prenup, prenup amendment, or postnup. The BC Family Law Act sets out the factors the court must consider in deciding whether an agreement should be set aside.