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 may love the person you live with and probably expect the relationship to be permanent, it’s smart to make plans about how things will unfold if the relationship ends.

You could consider a marriage agreement or a cohabitation agreement

This script explains marriage and cohabitation agreements—what they are, what they can and cannot do, and why to have one. A cohabitation agreement is sometimes also called a “living together agreement”, and marriage agreements are sometimes called “pre-nuptial agreements” or just a “pre-nup”.

This script covers only married spouses and unmarried spouses. People who are not spouses or do not think they will become spouses require different kind of legal information and should get legal advice.

Who is a spouse?

Under the BC 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 do not 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 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.

Marriage agreements and cohabitation agreements identify who each person is and state the purpose of the agreement. Then they set out promises that each person makes to the other, usually about what will happen if the relationship ends, but sometimes also 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 are not bound by your agreement—they are just saying that they saw you sign it.

Marriage agreements and cohabitation agreements usually deal with financial issues

Typically, marriage agreements and cohabitation agreements talk about who will manage and own property and debts during the relationship, and how those financial issues will be handled if the relationship breaks down. They sometimes also say whether spousal support will be paid if 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. It might also 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 certain 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. You should speak to a lawyer if you are thinking about getting a marriage agreement or cohabitation agreement.

Marriage agreements and cohabitation agreements sometimes talk about how children brought into the marriage or relationship will be cared for after separation. The Family Law Act says they cannot talk about how children born during the marriage will be cared after separation, 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 tries to ignore, change, or break the agreement after it’s signed. But contracts that are significantly unfair to either person, were unfairly entered into, or were made without full financial disclosure may be overturned by a 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?

The law imposes certain obligations on married and unmarried spouses that you cannot contract out of with an agreement. 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 time.

Agreements about children

Although you can make a marriage or cohabitation agreement that 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. On the other hand, contracts that talk about the care and financial support of children will be binding if they are made in contemplation of separation or after separation.

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, and to settle these issues now, before separation. The parties hope to avoid 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 are often used at the start of second relationships, especially when there are children from a previous relationship. They are also often used when one spouse is bringing more money or debt into the relationship.

Can you change or end an agreement?

You and your spouse can always change or cancel your agreement if you both agree to do so. 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 it. 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. 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, you should meet with a family law lawyer 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 lowers the chance of either of you later saying to a court, “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 will 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 agreements and cohabitation agreements usually deal with financial issues. If your spouse breaks the agreement, you can sue to enforce the agreement, just like any other contract.

More information

• For more on cohabitation agreements, see the Cohabitation Agreements page of JP Boyd on Family Law.
• For more on marriage agreements, see the Marriage Agreements page.

[updated October 2018]

The above was last edited by John Blois.

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