What is the test for determining whether a marriage agreement is fair?
British Columbia, Canada
The following excerpt is from Betz v Betz, 2019 BCSC 2198 (CanLII):
In Hanan v. Anderson, 2014 BCSC 96, the court described a two-stage process to determine whether the provisions of a marriage agreement are fair. The first stage of the fairness analysis requires the court to apply the agreement in order to determine what financial entitlements would be provided to each spouse under the agreement. In the second stage of the analysis, the court applies the factors set out in s. 65 of the Act to determine whether the marriage agreement operates unfairly. If the court finds that the agreement operates unfairly, then it is open for the court to re-apportion those assets.
Before embarking on the two-stage analysis described in Hanan, it is necessary to analyze the Agreement on a more basic level. It is necessary to determine whether the Agreement was made without duress, coercion or undue influence (Hartshorn v. Hartshorn, 2004 SCC 22).
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