Variation of BC Marriage and Cohab Agreements is a frequent area of dispute in British Columbia. A Court has the power to vary “unfair” marriage agreements under the former Family Relations Act and Significantly unfair agreements under our current Family Law Act. The best Variation of BC Marriage and Cohab Agreements Lawyers can explain what are the tips and traps related to signing a BC marriage agreement, prenup or cohabitation agreement.
Variation of BC Marriage and Cohab Agreements Lawyers Tel: 604 602 9000
Could Your Marriage Agreement Leave You With Little or Nothing?
If you are worried that a marriage, prenuptial, or cohabitation agreement could leave you with little or nothing after separation after many years together, or that the agreement will not protect your assets as originally intended, the conduct of both spouses over those same many years can matter greatly. An agreement that once appeared reasonable can operate very differently after years of marriage, career sacrifices, children, or major changes in family finances. In this article, senior associate Jonathan Wai of MacLean Law explains what the Best Variation of BC Marriage and Cohab Agreements Lawyers do in such circumstances.
Family Law Act and Family Relations Act Require Unfairness or Significant Unfairness To Vary Tel: 604 602 9000
In Campbell v Campbell, 2026 BCSC 1707 (“Campbell”), the parties signed a Marriage Agreement one day before their wedding. It generally excluded gifts and inheritances from division and provided for an increasing share of “shareable property.” After the fifteenth anniversary, Ms. Campbell’s maximum entitlement would have been 30% of the other party’s shareable property (paras 28-29). We note that this Agreement was signed prior to the current Family Law Act came into effect in 2013, and as such operated under the previous law, the Family Relations Act.
The problem with the Agreement was that, it being about 17 years later, the defined shareable property had largely disappeared. During that time, the house the parties originally had was long sold, with multiple houses acquired and sold later, as the parties moved a lot. Mr. Campbell, during the relationship, acquired a large inheritance of several million dollars, which was used by the parties for living expenses, including for years where neither party worked, and as well for the purchase of homes. The court recorded Ms. Campbell’s position that the shareable property was “essentially now non-existent,” whereby if the Agreement were strictly applied, she would receive virtually nothing.
Further, Ms. Campbell’s circumstances had changed substantially. Before having children, both worked in finance. Ms. Campbell later stopped working, underwent lengthy fertility treatments, and became the children’s primary caregiver, while Mr. Campbell received more than $7 million through inheritance-related assets that supported the family lifestyle as above.
Best Variation of BC Marriage and Cohab Agreements Lawyers Tel: 604 602 9000
Why the Agreement Was Not Applied Strictly
The court stated that the agreement, “as presently framed,” would most likely be unfair because it had not been reviewed as circumstances changed and its shareable-property category essentially no longer existed (para. 63)
The court used a three-step fairness analysis. First, the agreement is applied to determine the parties’ financial entitlements. Second, the court considers whether the circumstances at separation were contemplated when the agreement was signed. Third, it considers the factors in s. 65(1) of the former Family Relations Act to determine whether the agreement operates unfairly. (paras. 42-44)
The critical question was whether the agreement remained fair at the triggering event, including whether the parties’ actual circumstances had been contemplated and whether adequate arrangements had been made for what later occurred.
The court considered the length of the relationship, Ms. Campbell’s career sacrifice, fertility treatments, caregiving, economic independence, and the use of inherited wealth for family expenses and homes. Although becoming a caregiver was within the parties’ contemplation, the necessity and difficulty of the fertility treatments were likely not.
The court also considered that both parties were sophisticated, Ms. Campbell had legal representation, and she freely signed the agreement. Those facts supported giving some effect to the parties’ original intention to protect inherited property. However, the court noted that inherited wealth may carry less weight when it was received years before separation and used throughout the marriage to support the family.
To his credit, Mr. Campbell did not say that Ms. Campbell was entitled only to 30% of the virtually non-existent “shareable” assets, which would have left her with virtually nothing. Rather, he argued that Ms. Campbell should only be entitled to 30% of family property, as his inheritance, excluded under the Agreement, should at least be taken into consideration (para. 65)
The Result: Variation, Not Total Cancellation
The court did not enforce the Agreement literally. Nor did it accede to Mr. Campbell’s argument that Ms. Campbell should receive just 30% of the assets (including his inheritance). Instead, it varied the Marriage Agreement and reapportioned the family assets: 55% to Mr. Campbell and 45% to Ms. Campbell under s. 65 of the FRA. (paras. 81).
The result recognized both the original intention to protect inherited property and the later reality that inherited wealth had been used for the family while Ms. Campbell made significant caregiving and career sacrifices.
How Variation of Marriage and Cohab Agreements Lawyers Can Help
The above case illustrates the many considerations that can help assess what is fair after an Agreement was made many years if not decades ago, including:
- what the agreement would actually provide if applied today;
- whether the circumstances at separation were contemplated when it was signed;
- whether major changes made the agreement unfair in operation;
- whether the agreement was reviewed after changes involving children, work, property, or finances; and
- what evidence supports variation under the applicable legislation.
Campbell shows that there is room, in some cases considerable room, to vary an Agreement, particularly one that operates unfairly, years or decades later. In Campbell, the agreement was be varied where strict enforcement has become unfair, while still giving appropriate weight to the parties’ original intentions.
Best Variation of Marriage Agreements Lawyers Tel: 604 602 9000
Variation of Marriage Agreements Lawyers can help you assess your agreement, whether you are still together and just reviewing the agreement after changes in circumstances, or are contemplating separation and want advice on whether the agreement would be upheld, or varied, and what the entitlement to assets is. MacLean Law’s Variation of BC Marriage and Cohab Agreements Lawyers would be happy to assist you in this regard.
