As BC’s largest family law firm with four offices, including our head office in downtown Vancouver, British Columbia, across the Province and 9 lawyers we offer the following advice on agreements to our BC family law clients who are about to embark on what they hope will be a happy and fulfilling relationship whether it be by BC marriage or the ever more common BC marriage like relationship.
BC family law clients and BC couples make agreements at the beginning of or during a marriage or marriage like relationship for many different reasons, including to decide how to share property during the relationship, how to divide property if the relationship ends, and to address questions about custody, access, and support. Although there is no requirement to enter into a BC Cohabitation or BC Marriage Agreement, depending on your circumstances, these can be an effective method of protecting your future financial position should the BC family relationship end. For example, you may be bringing significant property into a relationship or anticipating receipt of substantial gifts or inheritances from a parent that you wish to protect, or you may wish to provide for some security in the future before deciding whether to relocate, leave a job, or have children as a result of the relationship. Family law agreements can address these issues in advance.
BC Cohabitation Agreements:
If the parties do not intend to marry, the agreement is usually called a “cohabitation agreement”.
As cohabiting in a marriage like relationship can give rise to certain support rights and obligations, a cohabitation agreement typically will address these potential future claims, as well as how property will be divided should the relationship end.
Under current BC family property law, legal presumptions concerning the sharing of property change if the parties marry. For that reason, the cohabitation agreement should state what will happen if the parties decide to marry at a later date, namely whether the cohabitation agreement will terminate, or will it continue in force but as a marriage agreement.
Agreements regarding property made after February 4, 1998 between unmarried spouses (whether of the same or opposite sex) are subject to judicial review for fairness on the same basis as agreements made between married spouses. For this reason persons with greater assets or potential to make large increases in net worth will avoid entering into such and agreements (see section 120.1 and discuss this key point with us! BEFORE SIGNING OR AGREEING TO SIGN) as such agreements can have the unintended effect of giving more to the poorer spouse than no agreement at all. A balanced, fair cohabitation or marriage agreement is more likely to be upheld by the court.
BC Marriage Agreements:
Agreements made before (i.e. a “pre nuptial” agreement) or during marriage but before separation are typically called “marriage agreements”. To fall within the definition of a “marriage agreement” under the BC Family Relations Act, the agreement must deal with property rights and follow specified formalities, including being in writing, signed by both spouses, and witnessed by one or more other persons.
We are sometimes asked to assist with finalizing marriage agreements shortly before the wedding is to take place, even as late as the day before the ceremony. It is preferable that such agreements be done well in advance of the wedding. We strongly recommend that you obtain legal advice when preparing and finalizing any family law agreements to ensure that your interests are protected.
Importance of Independent Legal Advice:
Please be aware that we are not able to advise both parties on the terms of a cohabitation or marriage agreement. Our advice is intended to protect the interests only of our client, and the other party to the agreement should go to their own lawyer for discussion and advice on the fairness of an agreement having regard to their own circumstances. For this reason, if one party contacts us to prepare an agreement or review an agreement with them, we will advise them that we can meet only with that person and not with their partner or intended spouse.
Reviewing a family law agreement with your own lawyer before signing it is intended to ensure that you are fully aware of your rights and obligations under common law and under legislation such as the Family Relations Act, Divorce Act, Estate Administration Act, and Wills Variation Act, and to assist with upholding the agreement as valid and enforceable if it is attacked later on.
We have four offices across BC in Vancouver, Surrey, Kelowna and Fort St John. Call us toll free to book an appointment at any of our four offices at 1 877 602 9900.
