When you are planning to marry your significant other or are already happily married, the idea of making a Marriage Agreement may not sound very romantic. And the purpose of this blog post isn’t to try to convince you that it is. However, there are several valid reasons you may want to get a Marriage Agreement—and important considerations for when you are in the process of negotiating a Marriage Agreement.
What is a Marriage Agreement?
A Marriage Agreement is a legally binding written family law agreement between two parties who either intend to marry each other or who are already married. A Marriage Agreement typically addresses how property and debt will be divided if the parties separate or if one of them predeceases the other, and whether either party is responsible for paying spousal support to the other if the relationship ends. It may also set out how the couple will divide household duties or manage financial affairs during the marriage.
Marriage Agreements typically do not include terms relating to child support or parenting arrangements, as these terms are usually unenforceable.
Reasons to get a Marriage Agreement
There are several reasons you might want to consider getting a Marriage Agreement.
A Marriage Agreement can:
1. provide greater peace of mind and certainty about how you and your spouse will deal with property and support issues in the unfortunate event that the two of you later separate or get a divorce;
2. help reduce acrimony and conflict upon separation by providing a higher degree of certainty and clear expectations about how you and your spouse will deal with certain financial issues in the future;
3. help ensure that the property you brought into the relationship remains your separate property if your relationship breaks down;
4. help protect you from becoming responsible for your spouse’s debts; and
5. help ensure that you don’t have to pay spousal support in the future or help ensure that your spouse will be obligated to pay you a certain amount of spousal support in the future.
Things to consider when negotiating a Marriage Agreement
1) Timing
Arguably, the best time to make a Marriage Agreement is shortly before you and your partner become “spouses” under the BC Family Law Act (the “FLA”). Under the FLA, you become spouses for the purposes of property division and spousal support once you have lived together in a marriage-like relationship for a period of at least two years. However, you can make a Marriage Agreement both before and after you get married.
However, it is generally advisable not to make a Marriage Agreement on the “eve of the wedding” because there is a greater risk that the Marriage Agreement, if challenged, could be set aside by the court on the basis that the challenging party was under duress or coercion in light of the upcoming wedding and lack of time to properly review and negotiate the terms of the agreement.
2) Financial Disclosure
Before entering into a Marriage Agreement, it is important for both parties to exchange full financial disclosure about each other’s income, assets, and liabilities. Exchanging sworn financial statements is generally recommended, and in some situations, you may also want to obtain independent valuations or appraisals of assets. An accurate assessment of the property and value each spouse brought into the relationship is critical to ensuring that this property is kept separate if the marriage later breaks down.
If you and your spouse do not provide full and accurate financial disclosure when negotiating your Marriage Agreement, there is a greater risk that the agreement could be set aside in the future.
3) Independent Legal Advice
Before you and your spouse sign a Marriage Agreement, it is important that both of you receive independent legal advice from a lawyer about the proposed agreement. A Marriage Agreement can be set aside if one of the spouses did not understand the nature or consequences of the agreement at the time of signing the agreement. Independent legal advice helps ensure that both parties fully understand what they are agreeing to and what their rights and obligations would ordinarily be under family law in British Columbia.
4) Legal Assistance
Marriage Agreements can be complicated, and it is often advisable to seek the professional assistance of a lawyer when drafting them. Have a well-drafted Marriage Agreement may save you thousands of dollars in legal fees in the future if you and your spouse separate and disagree on how property and debt should be divided or whether one of you is entitled to spousal support.
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The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation with one of our experienced family law lawyers.
