Vancouver Unfair Marriage Agreement Lawyers deal with cases where one party that has signed a marriage, prenup or cohabitation agreement wants to attack the fairness of that agreement on separation. Marriage agreements, as well as prenups and cohabitation agreements, can be attacked and set aside on common law grounds of:
- lack of independent legal advice,
- duress, and
Additionally, both our older BC Family Relations Act and our current BC Family Law Act allow for marraige agreements to be varied if they are unfair ( Family Relations Act for agreements before March 2013 “FRA”) or significantly unfair for agreements signed after March 18, 2013, under our current Family Law Act. However, FLA rules apply to pre-March 2018 cohabitation agreements between unmarried couples and post March 18, 2013 cohabitation agreements.
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Lorne MacLean, QC, founder of our 20 lawyer Vancouver Unfair Marriage Agreement Lawyers team, notes that the transitional provisions of our current Family law Act say when a marriage agreement predates the coming into force of the Family Law Act on March 18, 2013, the old rules for varying or changing the marriage agreement is based on proving unfairness. A new BC Court of Appeal case upheld a marriage agreement between a husband and wife that maintained a large disparity in assets such that the wife kept $6 million to the husband’s $1.6 million. The Appeal Court found the economic consequences of the marriage breakdown were not unfair to the respondent if the agreement was upheld. The court can vary an unfair marriage agreements considering the factors under section 65 of the FRA being the duration of the marriage, the duration of separation, date property acquired or disposed of, whether it was acquired from inheritance or gift, economic self-sufficiency issues, and other factors related to acquisition, improvement, and maintenance of property. The Appeal Court decided that the trial judge had erroneously let the wife keep all the assets that were her separate property under the agreement while mistakenly dividing equally the husband’s separate property family home he had brought into the relationship.
Vancouver Unfair Marriage Agreement Lawyers – The Law 1 877 602 9900
Santelli v. Trinetti decided just this week sets out the principles a court needs to look at in deciding to uphold or vary a marriage or cohabitation agreement. Vancouver Unfair Marriage Agreement Lawyers and their clients are advised to read the following extract to understand how the test works:
 Hartshorne remains the leading decision on the proper approach to considering whether a marriage agreement is unfair under s. 65. of the FRA. The court must first apply the terms of the agreement to the division of property. Then, the court must ask whether the parties’ agreement accurately contemplated the circumstances in which they now find themselves on separation. The final step is to consider the factors outlined in s. 65(1) to determine whether the agreement operates unfairly. The approach is explained by Justice Bastarache, speaking for the majority, at paras 43–47:
 … The essence of this inquiry is whether the circumstances of the parties at the time of separation were within the reasonable contemplation of the parties at the time the agreement was formed, and, if so, whether at that time the parties made adequate arrangements in response to these anticipated circumstances. …
 Thus, the determination that a marriage agreement operates fairly or unfairly at the time of distribution cannot be made without regard to the parties’ perspectives. … If the parties’ lives unfold in precisely the manner they had contemplated at the time of contract formation, then a finding that the contract operates unfairly at the time of distribution constitutes, in essence, a substitution of the parties’ notion of fairness with the court’s notion of fairness, providing that nothing else would suggest that the parties did not really consider the impact of their decision in a rational and comprehensive way. Thus, central to any analysis under s. 65(1) of the FRA is consideration of how accurately the parties predicted, at the time of contract formation, their actual circumstances at the time of distribution, whether they truly considered the impact of their decision and whether they adjusted their agreement during the marriage to meet the demands of a situation different from the one expected, either because the circumstances were different or simply because implications were inadequately addressed or proved to be unrealistic.
 … A fair distribution of assets must of course take into account sacrifices made and their impact, the situation of the parties at the time of distribution, their age, education and true capacity to reintegrate into the work force and achieve economic independence in particular. But this must be done in light of the personal choices made and of the overall situation considering all property rights under the marriage agreement and other entitlements. …
 The ultimate point then is this: in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties’ personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff’s burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties’ intentions, on the one hand, and assurance of an equitable result, on the other.
 Unfairness as contemplated in s. 65 does not permit consideration of a broad range of circumstances that could create inequity. Rather, a court may vary or reapportion the division of property only where the distribution of assets under the marriage agreement is unfair taking into account those factors set out in s. 65(1): Beese at paras. 21, 34. The object of the provision is to permit a court to intervene to avoid unfairness where the economic consequences of the marriage breakdown are not shared equitably. The focus is on distribution of assets and the resulting economic consequences.
 There is a substantial difference in value between the assets that would be retained by each party under the Marriage Agreement. The judge found that this was not unfair primarily because the Marriage Agreement “recognized that they were not necessarily bringing equal assets into the marriage and accepted the fact that each would retain whatever they brought in.” …
 I see no error in the judge’s application of s. 65 to the facts. While he did not say so directly, his conclusion that the parties accepted the fact that they would retain their separate property, is a finding that the parties lives unfolded as they anticipated. The respondent brought assets of significant value into the marriage and was entitled to retain that property. The appellant brought in assets of significantly less value. By accepting that they would retain their separate property, the parties must have anticipated that the disparity in net worth would continue while they built up their family property through their mutual efforts. They managed to do this and built up family property valued at $1.11 million.
 As noted in Hartshorne, at para. 46,the Court should be reluctant to intervene where “the parties have anticipated with accuracy their personal and financial circumstances at the time of distribution, and where they have truly considered the impact of their choices”. The reason for this is obvious: if the parties’ lives have unfolded as anticipated, then a finding that the Marriage Agreement operates unfairly would substitute the Court’s notion of fairness for that of the parties: Hartshorne at para. 44. Applying the provisions of the Marriage Agreement, the appellant will receive assets of significant value including the matrimonial home which he brought into the relationship and one half of the family assets built up over the course of the marriage. The agreement does not operate inequitably if the respondent is entitled to retain her separate property including the Santelli holdings.
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Contact our top-rated Vancouver Unfair Marriage Agreement Lawyers today if you have questions concerning an unconscionable or unfair marriage, prenup agreement or cohabitation agreement.