BC Prenup Marriage Agreement Lawyers are in increasing demand as people are more savvy now about protecting their income and assets in an ever more competitive world. Hiring a top rated law firm of BC Prenup Marriage Agreement Lawyers like the lawyers at MacLean Law makes sense if you are entering a marriage or marriage like relationship, whether it be your first or second. Well off parents, with wealth to pass on to their next generation, should also direct their child to our experienced and worldly BC Prenup Marriage Agreement Lawyers to ensure their wealth is not passed inadvertently to someone they did not wish to enrich. Tal Wolf authors today’s helpful blog for those curious about prenups and marriage agreements.
How Does A BC Prenup Marriage Agreement Work And Stand The Test Of Time?
The expression “better get a prenup” is commonly heard. Less often heard is that for prenups – now known as marriage agreements – to have any weight, parties need to predict and factor in the evolution of their future financial circumstances, and update their agreement so that it remains reasonable when reality departs from those predictions.
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In this month’s British Columbia Supreme Court decision in Guivian v. Goldarre, 2017 BCSC 1786, the parties entered into a marriage agreement half way into their 60-year marriage. By that point they had amassed roughly $300,000 in equity in some properties, cars and investment accounts. In the event of separation, the wife was to receive 2/3 of the value of the family assets, and the husband the remaining 1/3. The agreement was intended to be responsive to the wife’s concerns about her financial future. The Court agreed that, were the parties to separate within a reasonable time the arrangement would not have been a problem, and would not have seemed unfair. The parties had, however, by the time the separation took place, made spectacular gains in their equity up to some $3 million. Although the Court applied the Family Relations Act to the 1998 agreement (the Family Law Act comes into play only for agreements entered after its enactment in 2013), the fairness analysis is similar under both Acts: it is presumed that the division made in the agreement is valid unless the party challenging it is able to establish that it is “unfair” having regard to certain factors. The key is fairness, not equality.
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The leading case is found in Kelly v. Kelly, 2014 BCSC 2033 quoting Hartshorne v. Hartshorne, 2004 SCC 22: “an agreement may be unfair as contemplated…not only in its formation, but in its operation”. In other words, the court must determine whether the marriage agreement is substantively fair when the application for reapportionment is made. The 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. Although the change need not be “radically unforeseen”, and the applicant need not demonstrate a causal connection to the marriage, the applicant must show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution. When this happens, the Court may not condone the “prenup.”
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Thus, the wife lost her “2/3” claim outright in Guivian:
[42] “There is no way the parties had in their contemplation, making the kind of money they did. They made that money simply by riding the price increases their properties accumulated over time. At the time the agreement was made, bearing in mind that the agreement was not a separation agreement but was meant to create peace, it was fair. Ms. Goldarre was comforted by the arrangement. It left her with $133,200 against Mr. Guivian’s $66,800 or so. This arrangement was rendered paltry seven years later when the property sold for $1.36 million. The parties did not divide their assets as the agreement provided. They bought a property on Keith Road, put $100,000 into it, sold it for $2.5 million and purchased another property at 836 Esquimalt for $1,880,000, again without any reckoning between them. They simply proceeded on an equal basis. . . .The gains were so spectacular that the parties could not have anticipated finding themselves in the present circumstances. Better legal advice might have saved them but that is far from certain. I am satisfied, essentially on the sole basis that the events of the nearly 20 years since the making of the separation agreement were so out of the contemplation of the parties that the 1998 agreement cannot stand.” The Court ultimately made a simple 50/50 distribution.
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In sum, the contract depends on the parties’ perspectives. It reflects what the parties believed to be fair at the time the contract was formed (presuming the absence of duress, coercion, and undue influence). The parties would usually not be expected to deal with their present situation without any consideration of how they expect their situation will evolve over time. 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.
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Because courts will look to how accurately the parties predicted, at contract formation, their actual circumstances at the time of distribution, and whether they truly considered the impact of their decision, it may be critical to adjust the agreement to meet the demands of any situation different than what was expected. In fact, it may be a good idea to include recitals in the underlying agreement that lay out the details of the parties’ financial plan for their lives including their goals and expectations.
