Setting aside a prenuptial agreement in BC is a legal process where the Supreme Court invalidates or replaces all or part of a pre-marital contract. Under Section 93 of British Columbia’s Family Law Act (FLA), judges can intervene if an agreement involved non-disclosure, exploited vulnerability, or resulted in significant unfairness. Consulting a qualified family lawyer at Pax Law Corporation is essential to evaluating whether an agreement can be enforced or set aside.
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Section 93 of the Family Law Act (FLA)
For applications regarding setting aside a prenuptial agreement in BC, Section 93 of the FLA sets out the statutory criteria. The Supreme Court of British Columbia may set aside or replace an agreement respecting property and debt division under the following specific circumstances:
| FLA Provision | Legal Grounds for Setting Aside an Agreement |
|---|---|
| Section 93(3)(a) | Failure to disclose significant property, debt, or relevant financial information during negotiation. |
| Section 93(3)(b) | Taking improper advantage of a spouse’s vulnerability, ignorance, need, or distress. |
| Section 93(3)(c) | Failure by a spouse to understand the legal nature or consequences of the agreement. |
| Section 93(3)(d) | Common law grounds causing a contract to be voidable (e.g., duress, unconscionability, lack of capacity). |
| Section 93(5) | Significant unfairness considering the time passed, original intentions, and degree of reliance. |
For agreements entered into prior to March 18, 2013, Section 65 of the former Family Relations Act applies similar fairness criteria regarding marriage duration and economic independence.
Key Grounds for Setting Aside an Agreement
Courts evaluate specific evidence when considering an application for setting aside a prenuptial agreement in BC. The primary legal factors include:
- Failure to Disclose Assets: Concealing valuable assets, income, or liabilities when signing the contract.
- Exploiting Vulnerability: Unfairly leveraging a partner’s financial hardship or lack of legal knowledge.
- Lack of Understanding: Executing an agreement without comprehending the legal rights being surrendered.
- Duress or Undue Influence: Pressuring a partner to sign under unfair circumstances or without time to review.
- Unforeseen Circumstances & Unfairness: Major life changes over time that render the agreement significantly unfair at separation.
Case Study: H.S.S. v. S.H.D., 2016 BCSC 1300
The BC Supreme Court ruling in H.S.S. v. S.H.D. (2016 BCSC 1300) demonstrates how unforeseen life changes can result in setting aside a prenuptial agreement in BC. Upon marriage, Mrs. D was a wealthy heiress, while Mr. S was a lawyer starting his career. They signed a prenuptial agreement to protect Mrs. D’s family wealth.
Over time, circumstances shifted drastically. Mrs. D’s family lost much of their fortune, while Mr. S accumulated roughly $20 million in personal assets. Furthermore, their eldest child was born with health and learning difficulties, requiring Mrs. D to leave her lucrative career in Human Resources to provide full-time care.
The court set aside the prenuptial agreement because the parties had not contemplated having a child with special needs when signing. Mrs. D’s resulting loss of income and self-sufficiency was an unexpected consequence, making the original contract significantly unfair at the time of breakdown.
Role of a Lawyer in Protecting Your Rights
Retaining an experienced family lawyer during drafting drastically reduces the risk of an agreement being challenged or set aside. Legal counsel ensures full financial disclosure, independent representation, and proper execution under BC law.
Without independent legal advice, the likelihood of a successful challenge in court increases substantially. The legal team at Pax Law Corporation provides expert counsel to draft robust domestic agreements or challenge unfair contracts in court.
Frequently Asked Questions
1. Under what circumstances can you set aside a prenuptial agreement in BC?
Under Section 93 of the FLA, courts can set aside agreements for non-disclosure, coercion, lack of legal understanding, or significant unfairness caused by unexpected life changes.
2. What is Section 93 of the Family Law Act?
Section 93 is the legal provision in BC governing property division agreements, granting courts the authority to review, replace, or set aside non-compliant contracts.
3. Can giving up a career for child care invalidate a prenuptial agreement?
Yes. If a spouse sacrifices their career due to unforeseen circumstances (such as caring for a child with health needs), courts may find the agreement significantly unfair and set it aside.
4. Can an unwitnessed prenuptial agreement be enforced in BC?
Under Section 93(6) of the FLA, the Supreme Court has the discretion to apply setting-aside rules to unwitnessed written agreements if appropriate under the circumstances.
5. How can I ensure my prenuptial agreement cannot be set aside?
Ensure full financial disclosure, secure independent legal counsel for both spouses, and ensure all terms remain realistic and fair over time.
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