Prenups, Cohabitation Agreements, and Marriage Agreements: Do You Need One?

Many clients are shocked when they find out how the law divides assets and assigns spousal support (sometimes referred to as alimony) at the end of a relationship. Many people are surprised to find out that assets they thought were entirely theirs are no longer the case after a relationship ends.

One way to avoid potential legal surprises at the end of a relationship is to have a written agreement that deals with property division and spousal support. These agreements are often called prenuptial agreements, but in British Columbia, the courts refer to them as either cohabitation agreements for unmarried couples, or marriage agreements for married couples.

These agreements set out the legal relationship between the parties, and what will happen with the parties’ assets, liabilities, and debts when the relationship ends. These agreements can also deal with issues such as spousal support.

A properly drafted and executed agreement can potentially save tens of thousands of dollars in legal fees as even the most complex and thorough written agreement will be less expensive than even the simplest family law trial.  

Generally, a properly written agreement will be enforceable by the courts. However, it is common for the courts to overturn a written agreement because:

1. A party did not receive legal advice.
2. There has not been proper disclosure of assets.
3. The agreement is unfair.
4. A party has unfairly or improperly influenced the other party.
5. A party was under duress when the agreement was signed.
6. The terms of the agreement are unclear.

There are many homebrew agreements online. However, given the complexity of the law, and the eagerness of the courts to overturn agreements, it is essential that these agreements are drafted by a legal professional who understands the nuance required to create an agreement that will withstand judicial scrutiny.

If you have questions, we can help.  Contact MJB Lawyers for a consultation, and one of our experienced family law lawyers will assist you.