As same sex spousal support, gay married relationships family property and same sex partners, excluded property lawyers we recently were contacted by a same-sex couple living in the United States who wanted us to write up a pre-nuptial property and support agreement for them, in advance of their Canadian wedding. Their request got us thinking. The use of written agreements is a growing and expanding business in family law all over North America – amongst same-sex and opposite-sex couples alike – and our provincial government has taken notice.
The new Family Law Act, which is coming into force in British Columbia soon, is encouraging the use of written agreements, such as marriage agreements (known as “pre-nups” to our American friends) and separation agreements, to settle family disputes. Why? It is becoming increasingly evident that most family disputes are more successfully resolved when the parties are directly involved in their outcome, rather than having an agreement forced upon them by the courts.
First of all, the government is eliminating reference to four different types of agreements (known as “marriage”, “ante-nuptial”, “post-nuptial” and “separation” agreements), most of which are not clearly defined under the current Family Relations Act, thus leading to confusion for many couples.
Second of all, the new Act will make it more difficult for Courts to set aside property and spousal support agreements that have been agreed to by the parties. The White Paper on Family Relations Act Reform which has now been passed as the FAMILY LAW ACT and which will come into effect in the next 12 months sets out the following:
“Property and spousal support provisions in agreements that meet the formalities may only be set aside for non-procedural reasons in the limited circumstances where it would be clearly unfair not to do so. In considering whether to set aside a provision in an agreement, a court will consider the length of time that has passed between making of the agreement and the time at which the application is made, the intention of the parties in making the agreement to achieve certainty, and the objectives of the Act in relation to spousal support.”
Of course, agreements concerning children may still be set aside if they are found not to be in the best interest of the children or fail to comply with the Federal Child Support Guildlines.
Thus it is important for all couples, regardless of gender, who want certainty going into a marriage or marriage-like relationship speak to a qualified family lawyer before entering into a written agreement. In addition, couples who are splitting up should also seek a legal professional to draft up a proper agreement, because it could be the document that governs your rights for a lengthy period of time. Make sure your agreement is done right and contact us at MacLean Family Law Group for all your marriage, cohabitation and separation agreement needs.
