What Dhaliwal v. Dhaliwal and the leading cases tell us about when a BC court will hold you to your prenup — and when it will not.
By George Lee, Barrister & Solicitor | 李广田律师
Picture the scene. The wedding is on Friday. The hall is booked, the relatives are already in the air, the dress is pressed. And on Wednesday — two days before the ceremony — one of the spouses sits down and signs a marriage agreement saying that if the marriage ever ends, each person walks away with what they brought in.
That is close to what happened in Dhaliwal v. Dhaliwal, 2021 BCCA 72. The couple signed their agreement on June 18, 2008, and married on June 20, 2008. It was a second marriage for both, each had a career, and each came in with property and children of their own. Eight years later they separated — and the wife asked the court to set the agreement aside.
When people hear that story, they tend to land on one of two confident conclusions. Either: “She signed it — she’s stuck with it.” Or: “Two days before the wedding? No judge would ever enforce that.” Both answers feel obvious. Both are wrong- something an experienced family lawyer sees regularly when marriage agreements are challenged in court.
The two myths that get people into trouble
In more than two decades of Vancouver Family Lawyer, I have watched both myths cause real damage — sometimes to the same person at different stages of life.
The first myth is that a signed marriage agreement is bulletproof. People assume that because both spouses signed, and perhaps a lawyer or a notary watched them do it, the document is locked. So they stop thinking about it. They never revisit it across a twenty-year marriage during which the family home triples in value and one spouse leaves a career to raise the children.
The second myth is the opposite — that prenups are not worth the paper they are printed on, that a BC court will brush any of them aside the moment a marriage sours. So couples either skip the agreement entirely, or sign one carelessly, assuming it can never bind them.
The truth sits in the uncomfortable middle, and that is exactly where the pitfalls live:
- Signing under the gun — days, or hours, before the wedding, when saying “no” feels impossible.
- No real financial disclosure — one spouse never truly knew what the other owned or owed.
- No independent legal advice — one party had a lawyer, the other signed alone.
- Set-and-forget — an agreement that made sense in year one but is wildly out of step with life in year twenty.
The legal truth: how BC courts actually decide
Marriage agreements in British Columbia are governed today by the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”), not by general contract law alone. Property division is governed by section 93. Spousal support agreements are dealt with separately, under section 164, which applies a parallel test with some additional factors — including any change in a spouse’s circumstances since signing, and how well the agreement still meets the objectives of spousal support. A signed, witnessed agreement is presumptively binding: under s. 94(2), the court will not divide property covered by a valid agreement unless that agreement is first set aside.
So the real question is not “is the agreement perfect?” It is “is there a legal basis to set it aside?” Section 93 sets up a two-stage inquiry.
| Stage | What the court asks |
| 1. How it was made (s. 93(3)) | Was the bargaining process fair? An agreement can be set aside if a spouse failed to disclose significant property or debt, took improper advantage of the other’s vulnerability (ignorance, need or distress), or did not understand what they were signing. The FLA also preserves the ordinary common-law grounds that can make a contract voidable — for example, duress, undue influence, unconscionability, fraud, misrepresentation or mistake. |
| 2. How it operates (s. 93(5)) | Even if the process was clean, the court may still intervene if the agreement is “significantly unfair” today — weighing how much time has passed, the spouses’ intention to achieve certainty, and how much they relied on the agreement. |
That word — significantly — is doing real work. By choosing “significantly unfair” over the “unfair” standard in the old legislation, the statute signals a more demanding threshold, and BC courts have treated it that way. An agreement is not vulnerable just because it departs from a tidy 50/50 split, or because one spouse later wishes they had negotiated harder. The unfairness has to be weighty and compelling. Certainty and finality are values the FLA protects on purpose.
The leading cases — and the twists
Two decisions do most of the heavy lifting, and both reward a close read. One flag before we turn to them: both were decided under BC’s former Family Relations Act, so they show how courts approach these agreements rather than apply today’s exact statutory test. I will come back to why that matters.
The starting point is the Supreme Court of Canada’s decision in Hartshorne v. Hartshorne, 2004 SCC 22. Both spouses were lawyers. The husband came into the marriage with roughly $1.6 million in assets; the wife arrived with essentially nothing and some debt, and she later stepped back from practice to raise their children. Their agreement kept each spouse’s property separate, giving the wife a small, growing share of the matrimonial home for each year of marriage. The trial judge thought that was unfair and reapportioned the assets in her favour. A divided Supreme Court of Canada disagreed and upheld the agreement.
The principle that emerged is one I come back to constantly: courts give real deference to the choices spouses make for themselves. The key question is whether the circumstances that actually unfolded by separation were within the parties’ reasonable contemplation when they signed — and whether, at that time, they made adequate arrangements for those circumstances. An agreement is not unfair simply because, with hindsight, it produced an unequal result.
Which brings us back to Dhaliwal. It was a second marriage for both spouses; the husband, a widower with adult children, came into the relationship considerably wealthier than the wife. The bargain was straightforward: if the marriage broke down, each spouse would keep the assets they brought in along with any growth in those assets, but the husband would pay the wife a fixed lump sum of $450,000 to help her buy her own home.
The Court of Appeal worked through the same two-stage logic the FRA required. At the first stage, it found the agreement was not unconscionable in the way it was formed; despite being signed two days before the wedding, it was enforceable. At the second stage, it found the agreement largely operated fairly — with one telling exception. The family home had roughly doubled during the marriage, climbing from about $875,000 when the agreement was signed to roughly $1.9 million by the time of trial, and the agreement left the wife with no share of that growth — a point the trial judge had largely passed over. That, the Court of Appeal held, was unfair. The fair approach, it concluded, was for the spouses to share the increase in the home’s value equally, which raised the lump sum payable to the wife from $450,000 to $525,000. The separate spousal support arrangement was left in place.
| The twist worth remembering |
| An agreement can be valid and enforceable and still be adjusted at the edges for how it operates years later. In a province where home values can climb dramatically over the course of a marriage, a prenup that freezes one spouse out of the growth in the family home is exactly the kind of term a court will scrutinise. |
There is a crucial caveat, and I want to be clear about it. Both Hartshorne and Dhaliwal were decided under the former Family Relations Act, whose s. 65(1) asked only whether an agreement was “unfair.” The current FLA raised that bar to “significantly unfair.” So those cases remain valuable for their approach — especially the warning that runaway markets can turn a once-fair deal unfair — but a court today applies the FLA standard, which is harder to meet.
A more recent decision under the current statute, Schrader v. Schrader, 2025 BCCA 50, points the same way. It concerned a separation agreement rather than a marriage agreement, but it turns on the same provision: the Court of Appeal accepted that a sharp change in property values after signing can make an agreement significantly unfair under s. 93(5), and clarified that the three statutory factors are considerations that guide the analysis rather than a rigid checklist. The thread running from Hartshorne to Dhaliwal to Schrader is consistent: BC courts respect bargains, but they watch closely for unfairness that time and the market quietly create.
Practical guidance
So what does all of this mean in practice? It depends on which side of the agreement you are on.
If you are drafting one and want it to hold up:
- Give full, honest financial disclosure. Nothing sinks an agreement faster than a hidden asset.
- Make sure both spouses get independent legal advice — separate lawyers, real advice, in writing.
- Sign well ahead of the wedding. An agreement signed two days before the ceremony invites the very pressure argument you want to avoid.
- Plan for change. Build in periodic review, or a mechanism to share growth in key assets like the family home, so a long marriage and a hot market do not turn a fair deal into an unfair one.
- Be realistic about the future — children, a career put on hold, a property boom. In my view, agreements that anticipate these are the ones that survive scrutiny.
If you are trying to set one aside:
- Understand that the bar is high. You generally need a genuine defect in how the agreement was made, or significant unfairness in how it now operates.
- Gather the evidence — what was disclosed, what advice you received, what pressure you were under, and how circumstances have changed since.
- Act in a timely way. Delay can undercut a challenge, and time is itself one of the factors the court weighs under s. 93(5).
Talk to us before you sign — or before you challenge
A marriage agreement is one of the most consequential documents a couple will ever sign, and the difference between one that holds and one that unravels usually comes down to how it was made. Whether you are planning a marriage and want an agreement built to last, or you are facing one you believe is unfair, the time to get advice is now — not after the dispute has hardened.
At George Lee Law, we advise clients on marriage and cohabitation agreements, and on challenging and defending them, in English, Cantonese and Mandarin. Call us at 604-681-1611, email info@gleelaw.com, or visit gleelaw.com.
Disclaimer
This article provides general legal information only and is not legal advice. It does not create a solicitor-client relationship. The law changes, and its application depends on the specific facts of your situation. Case summaries are drawn from the decisions noted; recent appellate decisions may be subject to further appeal or later judicial consideration, and you should not rely on them without confirming their current status. For advice on your own circumstances, please consult a qualified BC lawyer. Current as of May 2026.