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Challenging the Enforceability of a BC Marriage Agreement


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  • Challenging the Enforceability of a BC Marriage Agreement

If properly prepared, a BC marriage agreement effectively and efficiently deals with issues such as division of property, responsibility for debts, spousal support, and child support on breakdown of a relationship. However, if not properly prepared or fairly negotiated, a BC marriage agreement may be set aside (in other words, the agreement may be found to be unenforceable in whole or in part). General contract law principles, the BC Family Law Act, and a number of equitable principles may form the basis of a successful challenge. Our BC family lawyers will review just a few of the bases for challenging the enforceability of a BC marriage agreement below. If you need more information about challenging or defending the enforceability of a BC marriage agreement, contact us to schedule a free consultation.

Challenging a BC marriage agreement under BC family law

Section 93(3) of BC Family Law Act provides an option for a spouse to apply to challenge the enforceability of a BC marriage agreement respecting property division and debt. More particularly, a BC marriage agreement respecting property division and debt may be set aside or replaced by an order of the court if, at the time the parties entered into the agreement, one or more of the following circumstances existed:

  • a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
  • a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
  • a spouse did not understand the nature or consequences of the agreement; and/or
  • other circumstances existed that would, under the common law, cause all or part of a contract to be voidable.

Even if none of the circumstances described above existed when the parties entered into the BC marriage agreement, by operation of s. 93(5) of the BC Family Law Act the court may still set the agreement aside if it finds that the agreement is “significantly unfair” given:

  • the length of time that has passed since the agreement was made;
  • the intention of the spouses, in making the agreement, to achieve certainty; and
  • the degree to which the spouses relied on the terms of the agreement.

It is also worth noting that the court’s willingness to interfere with a BC marriage agreement will generally increase in direct proportion with the degree to which the contract purports to depart from the general scheme provided for in the federal Divorce Act and provincial Family Law Act. For example, in Lemoine v. Griffith, 2012 ABQB 685, aff’d, 2014 ABCA 46 a marriage agreement was found to be invalid and unenforceable, with the court finding that it was a complete departure from the applicable statutory regimes. The marriage agreement in question purported to bar any claims the wife might ever have to share in the increase in value of the husband’s property. It also attempted to specifically exclude the operation of the Divorce Act and the Family Law Act, such that it could be interpreted as relieving the husband from any obligation to support the wife or their child on breakdown of the relationship.

Equitable grounds for challenging a BC marriage agreement

A BC marriage agreement might be void or voidable as a result of duress, which is the coercion of another’s will so as to vitiate consent (in other words, a threat that impairs the validity of one’s consent). A BC marriage agreement may also be void or voidable as a result of undue influence. Undue influence considers the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. Onyx Law Group’s team of BC lawyers have previously discussed undue influence in the BC estate law context. For example, see here for our discussion of the increasing common issue of dementia, undue influence and testamentary capacity; and see here for our discussion of challenging a gratuitous transfer of property from a parent to an adult child on the basis of undue influence.

In both family law and estate law contexts, undue influence may arise in two sets of circumstances:

  1. Where evidence can be adduced to prove that actual influence was exerted, unduly, in order to gain agreement to a particular transaction. “Strong persuasion” is not sufficient.
  2. From the nature of the relationship between the parties, particularly at the time the transaction is being negotiated and carried out.

In the Lemoine v. Griffith case referred to above, the court set aside the agreement as it found that undue influence was at play in the circumstances surrounding the signing of the marriage agreement. The wife was not told the truth about the purpose of the agreement and she was told she would have to leave the family farm if she did not sign it. The wife never got an advance copy of the agreement to review, she was taken to her husband’s lawyers’ offices where his lawyer “went through” the agreement, in her husband’s presence, and then she was sent off with another lawyer who spent approximately 15 minutes with her before she signed the agreement. (Check back for next week’s discussion of the importance of independent legal advice when negotiating and signing a BC marriage agreement).

The bottom line on enforceability of BC Marriage Agreements

On separation, BC marriage agreements (also known as marriage contracts, domestic agreements, or prenuptial agreements) can be effective and efficient if properly prepared and fairly negotiated. However, they will readily be set aside if not. If you need more information about challenging or enforcing a BC marriage agreement, contact Onyx Law Group at 604-900-2538 to schedule your initial 30-minute complementary consultation with one of our BC family lawyers.

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