Difference between revisions of "Marriage Agreements and Cohabitation Agreements"

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{{DEMOWARNING}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit], Brown Henderson Melbye|date= April 2020}} {{Dial-A-Law TOC|expanded = relationships}}
{{Dial-A-Law Blurb}}
Not all relationships last forever. But the law can help. A '''marriage agreement''' or '''cohabitation agreement''' can set out how couples will deal with issues that come up if their relationship ends. These types of agreements can also cover what will happen during their relationship. Learn more about these agreements.


==Relationships don’t always last forever==
{{PLSStorybox
About one in every two marriages will end in a divorce. The rate of breakdown of unmarried relationships is even higher. Although you love the person you are living with and probably expect the relationship to be permanent, it’s sometimes prudent to make plans how things will unfold in the event it comes to an end.
| image = [[File:levipls.png|link=]]
| text = “I own a condo and have some good investments that have added up over the years. My partner Krystle will be moving in with me in a few weeks. We’ve talked about making a cohabitation agreement. She doesn’t own property, but she owns an antique car she inherited from her dad and has some savings. We’ve decided that each of us will keep what we own before we start living together and want to put this in writing.”<br>– Levi, Campbell River, BC
}}


==You could consider a marriage agreement or a cohabitation agreement==
==What you should know==
This script will tell you about marriage and cohabitation agreements – what they are, what they can and can’t do, and the reasons for having or not having one. A cohabitation agreement is sometimes also called a “living together agreement”, and marriage agreements are sometimes known as a “pre-nuptial agreement” or just a “pre-nup”.


Note that this script only covers married spouses and unmarried spouses. People who aren’t spouses or don’t think they will become spouses require special legal advice.
===What is a marriage or cohabitation agreement?===
Marriage and cohabitation agreements are '''contracts'''. They set out promises each person makes to the other. The promises are usually about what will happen if the relationship ends. But they can also set out what will happen during the relationship if problems arise. The main goal is to head off future conflict.


==Who is a spouse?==
A '''marriage agreement''' can be made between spouses who are already married. Or it can be made by a couple planning to marry. It’s optional. You don’t have to make a marriage agreement before or after you marry someone.
Under the provincial ''Family Law Act'', a spouse is:


*someone who is married;
A '''cohabitation agreement''' can be made between two people who are already living together, or who are planning to live together. Again, you don’t have to make a cohabitation agreement before or while you live together.
*someone who has lived with someone else in a marriage-like relationship for at least two years; and
*for the parts of the ''Family Law Act'' that don’t deal with property and debt, someone who has lived with someone else in a marriage-like relationship for less than two years if the couple has had a child together.


==What are marriage agreements and cohabitation agreements?==
{| class="wikitable"
Marriage agreements and cohabitation agreements are legal contracts, just like any other type of contract such as the contract you might have with a landlord or a business partner. They are written documents that summarize each person’s legal obligations to the other.
|align="left"|'''Tip'''
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth Under the BC ''Family Law Act''], couples are considered '''spouses''' if they’re married or have lived together in a marriage-like relationship for at least two years. Couples who’ve lived together in a '''marriage-like relationship''' for less time but have a child together are also spouses (except for when it comes to property, debt, or pensions).
|}


Marriage agreements can be between spouses who are already married, or people who are planning to marry. Cohabitation agreements can be between people who are already living together or people who are planning to live together and expect to be living together.
These types of agreements are often used at the start of second relationships — especially when there are children from a previous relationship. They’re also common when one party is bringing more money or debt into the relationship.


Marriage agreements and cohabitation agreements identify who each of the parties are and usually makes some statement about the purpose of the agreement. Then they set out a series of promises that you each make to the other, usually about what will happen in the event the relationship ends, but sometimes also about what will happen during the relationship. They also say when they will take effect, which might be the date the couple marry or begin living together, or the date the agreement is signed.
===Issues a marriage or cohabitation agreement might deal with===
Typically, a marriage or cohabitation agreement talks about how '''property''' and '''debts''' will be managed during the relationship. Each type of agreement also talks about how property and debts will be divided if the couple breaks up. They sometimes also say if spousal support will be paid if the relationship ends.


==What are the legal requirements for a marriage agreement or cohabitation agreement?==
For example, an agreement might say that in the event you and your partner split up:
Marriage agreements and cohabitation agreements must be in writing. Both of you must sign the agreement, and your signatures must be witnessed by at least one other person. The witnesses do not become bound by your agreement; by witnessing your agreement, they are just saying that they saw you sign your name.


==Marriage agreements and cohabitation agreements usually deal with financial issues==
* each of you will keep whatever property you had before you started living together
Typically, marriage agreements and cohabitation agreements talk about who will be responsible for managing and owning property and debts during the relationship, and about how those financial issues will be handled if the relationship breaks down. They sometimes also say whether spousal support will be paid in the event the relationship breaks down.
* one of you will have the right to stay in the family home (at least temporarily)
* one of you will (or won’t) receive support from the other for a certain period of time
* one of you will get a certain share of the property you acquire during the relationship


For example, an agreement might say that each spouse will keep whatever property they had before they started living together, even if they later break up. In addition, it might say that if the spouses separate, one spouse will have the right to stay in the family home (at least temporarily) and perhaps receive support from the other spouse for a period of time and a certain portion of the family property. It may also say that each spouse will get an increasing share of the other spouse’s own, excluded property the longer the relationship lasts. There are many possible arrangements for how property, debts and spousal support will be dealt with and you should speak to a lawyer if you are thinking about getting a marriage agreement or cohabitation agreement.
There are many possible arrangements for how property, debts, and spousal support can be dealt with.


Marriage agreements and cohabitation agreements sometimes also talk about how children brought into the marriage will be cared for after separation. They usually don’t talk about how children born during the marriage will be handled, and they usually don’t talk about child support.
A marriage or cohabitation agreement might also cover what will happen '''during the relationship'''. For example, it might say how household chores or household expenses will be handled.


==Does the agreement have to be fair?==
===Issues a marriage or cohabitation agreement can’t deal with===
If both spouses get legal advice from their own lawyers and the agreement is reasonable, it will most likely be enforced by a court if one spouse tried to ignore the agreement after the relationship breaks down. However, contracts that are obviously unfair to either person, were unfairly entered into, or were made without full financial disclosure may be set aside or changed by the court, especially if one or both parties did not get independent legal advice about the meaning of the agreement and the consequences of signing it.
Married and unmarried spouses have certain legal obligations, like supporting their children. They can’t make an agreement to get out of these obligations.


==What things will not be enforced?==
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec44_smooth Under the ''Family Law Act''], any '''parenting''' or '''child support''' agreement is only binding if it’s made when the parties are about to separate or after they actually do.
With or without a written agreement, the law imposes certain obligations on married and unmarried spouses that you cannot contract out of.  Also, some terms will never be enforced by a court, such as a contract about having sex, remaining childless, or to end the marriage after a certain period of time.


==Agreements about children==
===The legal requirements to make an agreement===
Although you can make a marriage or cohabitation agreement which talks about the care and financial support of any children born during the relationship, the contract will not be binding on you if your relationship breaks down.
A marriage or cohabitation agreement must be in '''writing'''. Both parties (the people who enter into an agreement) must '''sign''' the agreement. Their signatures should be '''witnessed''' by at least one other person. Witnesses aren’t bound by the agreement — they’re just saying they watched the parties sign it.


==When and why are marriage agreements and cohabitation agreements used?==
===The enforceability of an agreement===
Marriage agreements and cohabitation agreements are sometimes intended to govern how things will work during a relationship. More often they’re intended to govern how things will work out if the relationship ends, in order to settle these issues now, in advance of separation, in the hope of avoiding future conflict and litigation. The issues easiest to resolve ahead of time usually involve the division of family property and excluded property, responsibility for debts and the payment of spousal support.
In BC, a court can set aside part or the whole of a marriage or cohabitation agreement. This can happen if the agreement is found to be '''significantly unfair'''.


Marriage agreements and cohabitation agreements seem to be used more often in second relationships than in first relationships, especially when there are children from a previous relationship. This is probably because someone who has gone through an unpleasant breakup might want to avoid going through that unpleasantness again.
A court can set aside a marriage or cohabitation agreement where one party took advantage of the other. For example, if one party failed to tell the other about significant property or debts, an agreement may be set aside. Similarly, an agreement signed under pressure a day or two before a wedding may not be enforceable.


==Can you change or end an agreement?==
There must be fairness in the way the agreement is negotiated, in the way it’s drafted, and in the way it’s signed.
You and your spouse can always change or cancel your agreement, providing of course that you both agree to the change or cancellation. Marriage agreements and cohabitation agreements are changed by making a second written agreement, called an “addendum agreement” or an “amending agreement”, to change some parts of the first agreement or to cancel and replace the first agreement. Like the first agreement, you must sign the new agreement and your signatures must be witnessed.  


==You should consult a lawyer==
A key way to have fairness is to have each party get '''independent legal advice''' before signing the agreement. That is, each party meets with their own lawyer to get advice about:
If you want a marriage agreement or cohabitation agreement, you can write down some general ideas and expectations with your spouse and either prepare a written agreement based on these notes or have a lawyer draft the agreement. It’s important to know that an agreement signed under pressure a day or two before a wedding may not be enforceable.


Whether you have a lawyer write the agreement or not, it is very important that you meet with a lawyer who is familiar with this area of the law for advice about how the agreement affects your rights and obligations, including your future rights and obligations, before you sign it.
* what the agreement means,
* what rights and obligations the agreement gives to each party, and
* how the agreement affects other legal options that might otherwise be available.


==Your spouse must see a lawyer too==
===Changing or ending an agreement===
This may seem unnecessary when the two of you have an agreement. But having your own lawyers at this stage lowers the chance of either of you being able to say to a court at a later date, “I didn’t know what I was signing” or “I only signed it because I thought I had no choice”. If you want a marriage agreement or a cohabitation agreement, you want to make sure it’s going to do the job, and it’s usually worthwhile to spend the extra time and money to do it properly.
The parties to a marriage or cohabitation agreement can always change or cancel their agreement if they both agree to do so. The parties can change an agreement by making a second written agreement called an '''addendum agreement''' or an '''amending agreement'''. This second agreement can change some parts of the first agreement, or can cancel and replace it. Like the first agreement, the parties must sign the new agreement and have their signatures witnessed.


==Summary==
{| class="wikitable"
If you’re considering a marriage agreement or a cohabitation agreement, discuss the idea with your spouse or future spouse, and then discuss it with a lawyer. Marriage agreement and cohabitation agreements usually deals with financial issues. If trouble comes and your spouse breaks the agreement, you can sue to enforce the agreement, just like any other contract.
|align="left"|'''Tip'''
The Family Law website from Legal Aid BC has [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/how-do-you-change-agreement detailed information and steps for changing agreements].
|}


For more information about cohabitation agreements, see the Cohabitation Agreements page of the wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, at wiki.clicklaw.bc.ca/index.php/ Cohabitation_Agreements. For more information about marriage agreements, see the Marriage Agreements page at wiki.clicklaw.bc.ca/index.php/Marriage_Agreements.
==Common questions==


[updated November 2014]
===My fiance is pressuring me to sign a marriage agreement. Do I have to?===
No. There’s no legal requirement that you have a marriage agreement if you're planning to marry someone. (Or a cohabitation agreement if you’re planning to live with someone.) You can't be forced to sign one. A court may set aside an agreement you were pressured into.


----
===Should my spouse and I use separate lawyers?===
----
If you want to make a marriage or cohabitation agreement, you can write down some general ideas and expectations with your partner. Then you can either prepare a written agreement based on these notes or have a lawyer draft the agreement.


Whether or not a lawyer writes the agreement, you should meet with a family lawyer for advice and to ensure you understand your rights and obligations. Some lawyers offer [https://unbundlinglaw.peopleslawschool.ca/ unbundled legal services]. This is when a lawyer handles specific parts of your case without taking on the whole thing. Such a lawyer can look at a draft of your agreement. They can explain how the agreement affects your rights and obligations '''before''' you sign it.


===Should my spouse and I use separate lawyers?===
This may seem unnecessary. But as a general rule, both parties entering into a marriage or cohabitation agreement should get '''independent legal advice''' (advice from their own lawyer) '''before''' signing the agreement.
Independent legal advice is important for two reasons:
* it helps the parties know exactly what their rights and obligations are, and
* it makes the agreement stronger by preventing either party from later claiming they didn’t fully understand parts of it or how it would impact them.
To save money, one spouse’s lawyer could prepare the agreement. Then the other spouse’s lawyer could provide that spouse with legal advice.
==Who can help==
===With more information===
The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, has in-depth information about marriage agreements and cohabitation agreements, including drafting tips.
* [[Family_Law_Agreements|Visit website]]
The '''Family Law website''' by Legal Aid BC has information about agreements, including cohabitation agreements.
* [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-when-you-live-together Visit website]
===Free and low-cost legal help===
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
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Latest revision as of 18:58, 30 April 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye in April 2020.
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Not all relationships last forever. But the law can help. A marriage agreement or cohabitation agreement can set out how couples will deal with issues that come up if their relationship ends. These types of agreements can also cover what will happen during their relationship. Learn more about these agreements.

Levipls.png
“I own a condo and have some good investments that have added up over the years. My partner Krystle will be moving in with me in a few weeks. We’ve talked about making a cohabitation agreement. She doesn’t own property, but she owns an antique car she inherited from her dad and has some savings. We’ve decided that each of us will keep what we own before we start living together and want to put this in writing.”
– Levi, Campbell River, BC

What you should know

What is a marriage or cohabitation agreement?

Marriage and cohabitation agreements are contracts. They set out promises each person makes to the other. The promises are usually about what will happen if the relationship ends. But they can also set out what will happen during the relationship if problems arise. The main goal is to head off future conflict.

A marriage agreement can be made between spouses who are already married. Or it can be made by a couple planning to marry. It’s optional. You don’t have to make a marriage agreement before or after you marry someone.

A cohabitation agreement can be made between two people who are already living together, or who are planning to live together. Again, you don’t have to make a cohabitation agreement before or while you live together.

Tip

Under the BC Family Law Act, couples are considered spouses if they’re married or have lived together in a marriage-like relationship for at least two years. Couples who’ve lived together in a marriage-like relationship for less time but have a child together are also spouses (except for when it comes to property, debt, or pensions).

These types of agreements are often used at the start of second relationships — especially when there are children from a previous relationship. They’re also common when one party is bringing more money or debt into the relationship.

Issues a marriage or cohabitation agreement might deal with

Typically, a marriage or cohabitation agreement talks about how property and debts will be managed during the relationship. Each type of agreement also talks about how property and debts will be divided if the couple breaks up. They sometimes also say if spousal support will be paid if the relationship ends.

For example, an agreement might say that in the event you and your partner split up:

  • each of you will keep whatever property you had before you started living together
  • one of you will have the right to stay in the family home (at least temporarily)
  • one of you will (or won’t) receive support from the other for a certain period of time
  • one of you will get a certain share of the property you acquire during the relationship

There are many possible arrangements for how property, debts, and spousal support can be dealt with.

A marriage or cohabitation agreement might also cover what will happen during the relationship. For example, it might say how household chores or household expenses will be handled.

Issues a marriage or cohabitation agreement can’t deal with

Married and unmarried spouses have certain legal obligations, like supporting their children. They can’t make an agreement to get out of these obligations.

Under the Family Law Act, any parenting or child support agreement is only binding if it’s made when the parties are about to separate or after they actually do.

The legal requirements to make an agreement

A marriage or cohabitation agreement must be in writing. Both parties (the people who enter into an agreement) must sign the agreement. Their signatures should be witnessed by at least one other person. Witnesses aren’t bound by the agreement — they’re just saying they watched the parties sign it.

The enforceability of an agreement

In BC, a court can set aside part or the whole of a marriage or cohabitation agreement. This can happen if the agreement is found to be significantly unfair.

A court can set aside a marriage or cohabitation agreement where one party took advantage of the other. For example, if one party failed to tell the other about significant property or debts, an agreement may be set aside. Similarly, an agreement signed under pressure a day or two before a wedding may not be enforceable.

There must be fairness in the way the agreement is negotiated, in the way it’s drafted, and in the way it’s signed.

A key way to have fairness is to have each party get independent legal advice before signing the agreement. That is, each party meets with their own lawyer to get advice about:

  • what the agreement means,
  • what rights and obligations the agreement gives to each party, and
  • how the agreement affects other legal options that might otherwise be available.

Changing or ending an agreement

The parties to a marriage or cohabitation agreement can always change or cancel their agreement if they both agree to do so. The parties can change an agreement by making a second written agreement called an addendum agreement or an amending agreement. This second agreement can change some parts of the first agreement, or can cancel and replace it. Like the first agreement, the parties must sign the new agreement and have their signatures witnessed.

Tip

The Family Law website from Legal Aid BC has detailed information and steps for changing agreements.

Common questions

My fiance is pressuring me to sign a marriage agreement. Do I have to?

No. There’s no legal requirement that you have a marriage agreement if you're planning to marry someone. (Or a cohabitation agreement if you’re planning to live with someone.) You can't be forced to sign one. A court may set aside an agreement you were pressured into.

Should my spouse and I use separate lawyers?

If you want to make a marriage or cohabitation agreement, you can write down some general ideas and expectations with your partner. Then you can either prepare a written agreement based on these notes or have a lawyer draft the agreement.

Whether or not a lawyer writes the agreement, you should meet with a family lawyer for advice and to ensure you understand your rights and obligations. Some lawyers offer unbundled legal services. This is when a lawyer handles specific parts of your case without taking on the whole thing. Such a lawyer can look at a draft of your agreement. They can explain how the agreement affects your rights and obligations before you sign it.

Should my spouse and I use separate lawyers?

This may seem unnecessary. But as a general rule, both parties entering into a marriage or cohabitation agreement should get independent legal advice (advice from their own lawyer) before signing the agreement.

Independent legal advice is important for two reasons:

  • it helps the parties know exactly what their rights and obligations are, and
  • it makes the agreement stronger by preventing either party from later claiming they didn’t fully understand parts of it or how it would impact them.

To save money, one spouse’s lawyer could prepare the agreement. Then the other spouse’s lawyer could provide that spouse with legal advice.

Who can help

With more information

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has in-depth information about marriage agreements and cohabitation agreements, including drafting tips.

The Family Law website by Legal Aid BC has information about agreements, including cohabitation agreements.

Free and low-cost legal help

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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