Marriage Agreements and Cohabitation Agreements

Relationships don’t always last forever

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.

You could consider a marriage agreement or a cohabitation agreement

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.

Who is a spouse?

Under the provincial Family Law Act, a spouse is:

• someone who is married;
• 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?

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.

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.

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.

What are the legal requirements for a marriage agreement or cohabitation agreement?

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

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.

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.

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.

Does the agreement have to be fair?

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.

What things will not be enforced?

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

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.

When and why are marriage agreements and cohabitation agreements used?

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.

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.

Can you change or end an agreement?

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

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.

Your spouse must see a lawyer too

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.

Summary

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.

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.

[updated November 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

An agreement signed by people who are planning on marrying or who have married that is intended to govern their rights and obligations in the event of the breakdown of their marriage and, sometimes, their rights and obligations during their marriage. See "family law agreement."

An agreement signed by people who are or have begun to live together in a marriage-like relationship that is intended to govern their rights and obligations in the event of the breakdown of their relationship and, sometimes, their rights and obligations during their relationship. See "family law agreement."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

A term under the Family Law Act referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards, and insurance payments. A spouse is presumed to be entitled to keep their excluded property without having to share it with the other spouse. See "family property," "gift" and "inheritance."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

(1) A preliminary version of a document, (2) an order prepared following judgment and submitted to the court for its approval, or (3) to prepare, or draw, a legal document.

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.