Pre-Nuptial Agreements, also known as “Cohabitation Agreements” or “Marriage Agreements”

What are Pre-Nuptial Agreements?

You may have heard the term “Pre-Nup” or “Pre-Nuptial Agreement” colloquially used in mainstream media or on popular TV series and movies. In British Columbia, legal professionals typically refer to this type of agreement as either a Cohabitation Agreement or Marriage Agreement and they are all the same thing: a contract between two individuals who are planning on getting married or living together in a marriage-like relationship. These contracts address any issues that arise if the marriage or relationship breaks down. Some of the issues they may address include, but are not limited to, division of assets and debts, parenting arrangements, child custody and support payments. The main difference between the terms Marriage Agreement and Cohabitation Agreement is that the Marriage Agreement precedes a marriage or can also be entered into during a marriage, and the Cohabitation Agreement is utilized when two individuals are living together in a marriage-like relationship, also commonly referred to as a common-law relationship. The Cohabitation Agreement can still exist and remain in place if, eventually, the couple decides to get married in the future. 

In British Columbia, under the Family Law Act, which is the legislation that governs how the Courts come to decisions on family law matters, a marriage-like relationship comes to be when a couple live together in a marriage-like relationship for a period of two years. Once the two-year period is established, the property and debt division rules of the Family Law Act apply. Further, spousal support can be payable inside of this two-year period if a child is born of the marriage-like relationship. Once a marriage-like relationship is found for a period of two years, it is essentially the same as if the two individuals were legally married. There are many factors that exist in the determination of a marriage-like relationship. Some of the major factors are shared shelter, sexual and personal behaviour, services, social activities, economic support, children and the intentions of the parties. It is important to keep in mind that no one factor is determinative of a marriage-like relationship and instead, a host of factors may be considered. 

The main goal of a Marriage or Cohabitation Agreement is they seek to protect parties’ interests, assets, debts, and children. The agreement outlines the ownership of the couple’s respective assets and how these assets will be divided should the marriage or relationship end in divorce or separation. 

It is important to discuss finances and money prior to entering a relationship, either as a common-law partner in a marriage-like relationship or as a married couple. The effect of these relationships can have great financial consequences; therefore, a Marriage or Cohabitation Agreement can ensure fairness and clarity in the event it does not work out. Although it may seem negative to plan for the end of a relationship, it is a responsible and practical reality that many couples must face in their lives. Planning for it helps to ensure everyone knows their rights and responsibilities and lessens confusion and dispute about issues.

 What are some things a “Marriage Agreement” or “Cohabitation Agreement” can do for you?

The Marriage or Cohabitation Agreement protects each party’s individual rights to their assets acquired prior to the marriage or marriage-like relationship. Accordingly, the property each party brings into the relationship can remain their separate property.

The Marriage or Cohabitation Agreement can protect each party from the other’s debts brought into the relationship. It can specify that a party is not responsible for the debts of the other if the parties separate.  

The Marriage or Cohabitation Agreement outlines the financial responsibilities of each party during the marriage-like or marriage relationship, such as how and who will pay the bills, how joint debts or expenses will be paid and how much each party will contribute to savings.

Support payments can also be stipulated, for example, whether either party will be entitled to spousal support upon the end of the relationship and if so, the duration of such support payments.

Marriage or Cohabitation Agreements can assist in estate planning and can safeguard specific assets or heirlooms to ensure they are passed to children. They also set out what will happen regarding parenting time, parental responsibilities and child support payments for children.

It is important to bear in mind that Courts can set aside portions of or the entirety of a Marriage Agreement or Cohabitation Agreement if it is found that they are significantly unfair. This is why it is essential to contact a trusted lawyer to assist in the preparation and drafting of these significant and sometimes complicated legal documents.

The lawyers at Cote & Evans Trial Lawyers are experienced at dealing with Marriage and Cohabitation Agreements and are happy to assist you in navigating the process. Please contact our office today to speak to a lawyer.