What is the test for a spouse to vary the terms of their marriage agreement?
British Columbia, Canada
The following excerpt is from L.E.E. v. D.J.E., 2011 BCSC 260 (CanLII):
The court’s primary concern when considering an application to vary a marriage agreement is whether the agreement was fair when it was made: Hartshorne v. Hartshorne, 2004 SCC 22. Further, the court must presume that an equal division of the family assets is fair; equal division is the standard against which the agreement must be measured, not some other scheme of division that might also be considered to be fair: M. (S.B.) v. M. (N.), 2003 BCCA 300. Finally, the court must not proceed on the basis of rough estimates of the values of the assets involved; in order for the court to perform its function under s. 65, the party seeking to displace the agreement must show that the value of the assets was unfairly divided. This proposition was established in Hartshorne, supra, at para. 52:
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