Pre-nuptial Agreements and Marriage Contracts
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Commonly asked marriage agreement questions.
A Marriage Agreement is a contract entered into between two people either contemplating marriage or are already married but have not separated. So, a Marriage Agreement can be entered into either before a couple marries, or while they are married.
A Marriage Agreement is drafted to clearly set out each parties’ expectations and wishes on various issues such as property division in the event the marriage comes to an end. A Marriage Agreement may also lay out each spouse’s expectations of, or promises to, each other during a relationship.
Issues and topics addressed in a Marriage Agreement which contemplate a potential separation may include:
- Property Division, if any
- Debt Division, if any
- Spousal Support, if at all
- Rights to the family home (even temporary rights, such as remaining living in the home for a defined period of time)
- How to deal with jointly held property
- How to deal with unexpected windfalls such as gifts from parents or inheritances
- Responsibilities for stepchildren
- Supporting a Will in outlining your wishes in the event of death (for example, your property, or a portion thereof, goes to your children from a prior relationship)
Issues and questions addressed in a Marriage Agreement which contemplate rights and responsibilities of each spouse during the relationship include:
- How will household and other expenses be shared or divided?
- What responsibility for debts will each party have during the relationship?
- How will income be shared, if at all?
- Will bank accounts be shared or kept separate?
- Will property be purchased jointly or separately?
A Marriage Agreement must be in writing and signed by both parties. While each parties’ signatures should be witnessed by a third party, usually each party signs the Marriage Agreement in front of his or her lawyer as a witness. Further, Certificates of Independent Legal Advice are typically appended to the end of the Marriage Agreement.
A Pre-Nuptial Agreement (often called a “Pre-Nup” for short) is really just a Marriage Agreement that is entered into when a couple is contemplating getting married. The Pre-Nup usually takes effect upon the marriage of the couple. So, a Pre-Nuptial Agreement is another name for a Marriage Agreement that is entered into by a couple before they marry. In the U.S., marriage contracts are generally called Pre-Nuptial agreements, or Pre-Nups; frequently, Canadians use the American Pre-Nup term.
Marriage Agreements, even more so than Separation Agreements, can be very complex legally and difficult to draft. Unlike in Separation Agreements, where we are for the most part, dealing with current realities and known assets and debts, Marriage Agreements tend to speculate into the future as to how a marriage will operate and what assets and debts will be acquired.
While some speculation is inevitable (and even necessary) in a Marriage Agreement, too much can be detrimental to the viability of the Agreement. Further, many more potential traps and unexpected consequences can arise from a poorly drafted and conceived Marriage Agreement. Do-It-Yourself or Recycled agreements taken from a friend and revised to change names should be avoided at all costs.
The Family Law Act of BC places great weight on the procedural fairness aspect of the development of Marriage Agreements. What this means for you is that the fairer the procedures engaged in preparing a Marriage Agreement, the stronger your Agreement will be in the eyes of the Court.
Procedural Fairness demands that full financial disclosure be made between two parties negotiating and entering a BC Marriage Agreement. If full financial disclosure is not adhered to, the Agreement may be at risk of being overturned by the Court at a later date.
While it may be tempting on the part of one or both spouses to make promises to the other that are either different than those promises set out in the Agreement or supplement those promises, those verbal promises and declarations are not binding. When couples are negotiating a Marriage Agreement, they are doing so typically at a time where hope, positivity and commitment to each other characterize their relationship.
However, if the progression of time leads a couple to separate, those feelings may have evolved and changed to reflect their current separation. The desire to act on those verbal promises may have dissipated. If promises are to be acted upon, they must be included in the Marriage Agreement.
While it is tempting to put-off the preparation of a Marriage Agreement in the excitement of preparing for a wedding, you should start the process with a lawyer as soon as practicable. It is important to make sure you have given yourself and your spouse sufficient time to negotiate a Marriage Agreement that meets both of your needs and underlying wishes.
Once you start discussing the nitty gritty of a Marriage Agreement, you may discover that you are not as close to an agreement on all issues as you may have originally thought. This is ok – it likely just means you need more time to contemplate and discuss the terms of agreement.
You do not want to rush into a Marriage Agreement that does not adequately address your concerns or meet your needs simply because everyday life pressures and a wedding date (along with guests, ceremony and reception obligations, and financial commitments) place an unnecessary burden on you to get the Marriage Agreement done and signed. Plan to negotiate and prepare your Marriage Agreement as early as possible prior to a wedding date.
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