Difference between revisions of "Marriage Agreements"

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|link = [https://www.clicklaw.bc.ca/global/search?k=marriage%20agreements marriage agreements]
}}Marriage agreements are contracts signed by people either before they marry or shortly afterwards. Most marriage agreements are prepared and signed well before the date of that marriage, and that kind of approach to timing is usually a very good idea. Marriage agreements are normally intended to deal with some of the legal issues that may arise if the marriage breaks down, but they can also deal with how day-to-day things will be handled during the marriage.


A marriage agreement is a contact entered into either before marriage or shortly afterwards. Most marriage agreements are drafted and signed well ahead of the date of marriage. Marriage agreements are usually intended to deal with the legal issues that will arise if the marriage breaks down but they can also deal with how day-to-day issues will be handled during the marriage.
This section discusses when and why marriage agreements are usually entered into, the legal requirements of a valid marriage agreement, and the possible subjects of a marriage agreement.


This page will discuss when and why marriage agreements are usually entered into, the legal requirements of a valid marriage agreement, and the possible subjects of a marriage agreement.
==Entering into a marriage agreement==


==Entering into a Marriage Agreement==
While a couple might enter into a marriage agreement with the intention of addressing things that could happen during the course of their marriage, more often these agreements are intended to address the issues that may arise if the marriage breaks down. Marriage agreements are binding on the parties the way any other legal contract is binding on people. They can be enforced by the courts if someone tries to avoid or change an obligation they have agreed to.


A couple may enter into a marriage agreement with the intention of addressing things that might happen during the course of their marriage, but, more typically, they are intended to address the issues that will arise when the marriage breaks down. Marriage agreements are binding on the parties as a legal contract and will usually be enforced by the courts.
Most couples who marry do not have a marriage agreement. In fact, there is no law that says you must sign a marriage agreement if you're married or planning to marry someone.


Most couples who marry do not have a marriage agreement. There is no legal requirement that you must enter into such an agreement if you're getting married and you cannot be forced into a marriage agreement.
The person you're planning on marrying can't force you to sign a marriage agreement either. Deciding not to sign a marriage agreement might end your relationship and the chances that you'll actually get married, but that's your choice. You don't have to sign a marriage agreement.  


===When a Marriage Agreement is a Good Idea===
===When a marriage agreement is a good idea===


Marriage agreements are usually appropriate when:
Marriage agreements are usually appropriate when:


one or both of the parties have a substantial amount of property or assets going into the marriage;
*one or both of the parties have a substantial amount of property going into the marriage,
one of the parties expects to acquire substantial assets during the marriage through, for example, a business, an inheritance, a settlement or court award, or a gift;
*one of the parties expects to acquire substantial property during the marriage, through, for example, a business, an inheritance, a settlement or court award, or a gift,
the parties want to avoid some of the stress and anger that can come after separation by deciding in advance how certain difficult issues, like the division of family assets, will be dealt with;
*the parties want to avoid some of the stress and anger that can come after separation by deciding in <span class="noglossary">advance</span> how certain difficult issues, like the division of property and debt, will be dealt with,
one or both of the parties has been married before and experienced an ugly court battle;
*one or both of the parties experienced an ugly court battle leaving a previous relationship,
one or both of the parties will be bringing children from a previous relationship into the marriage; or,
*one or both of the parties will be bringing children from a previous relationship into the marriage, or
one of the parties is entering the marriage with substantial debt.
*one of the parties is entering the marriage with substantial debt.
In most cases, people generally want to protect the property that they're bringing into the marriage and avoid the Family Relations Act's presumption that all assets ought to be split equally between spouses when their marriage comes to an end; many people are looking for an "I'll keep what's mine, you'll keep what's yours" sort of deal.


The odd thing about this is that the court may make an order dividing assets that's different than what a marriage agreement calls for if the agreement is found to be unfair under s. 65 of the Family Relations Act. As a result, a good marriage agreement will allow a spouse to "earn" an increasing share of the other spouse's property as time goes by to give the contract the best chance of remaining fair from the point of view of the act. In many marriage agreements, a spouse will earn an equal or near-equal share of the assets by the fifteenth, twentieth or twenty-fifth year of marriage. In fact, most people don't wind up with an "I'll keep what's mine, you'll keep what's yours" deal after all.
In most cases, people generally want to protect the property that they're bringing into the marriage and avoid the scheme for dividing property and debt set out in the provincial ''[[Family Law Act]]''; many people are looking for an "I'll keep what's mine, you'll keep what's yours" sort of deal, and that — or any other reasonable kind of arrangement — is precisely what you can get with a marriage agreement.


===When a Marriage Agreement is a Bad Idea===
===When a marriage agreement might be a bad idea===


A marriage agreement may not be appropriate when:
A marriage agreement may not be appropriate when:


neither party has any significant assets;
*neither party has significant property,
neither party has any significant debts;
*neither party has significant debts,
both parties are relatively young and intend the marriage to be permanent; and,
*both parties are relatively young and expect their marriage to be permanent, and
neither party is bringing any children into the marriage from another relationship.
*neither party is bringing any children into the marriage from another relationship.
In circumstances like that, there really isn't much of a point to executing a marriage agreement. There aren't any kids to worry about and neither party has any assets to protect going into the marriage. What purpose would a marriage agreement serve?


Marriage agreements are odd things anyway as they tend to lend a unpleasant and sometimes petty financial dimension to what ought to be a joyous circumstance. If there's no good reason to have a marriage agreement, don't have a marriage agreement.
In circumstances like these, there really isn't much point to having a marriage agreement. There aren't any kids to worry about and neither party has any assets to protect going into the marriage. What purpose would a marriage agreement serve?


===Negotiating a Marriage Agreement===
On top of that, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with:


If a marriage agreement is appropriate and desirable, the parties will negotiate the terms of the agreement, and one or both of the parties will draft a written agreement for review and maybe execution. As with all family law agreements, it is important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me" and challenging the agreement later on.
#parental responsibilities and parenting time, or
#child support.


Marriage agreements should be entered into well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and executed. The emotional stress involved in arranging the wedding may be found to mean, for example, that a party was effectively coerced into signing the agreement. Are you going to tell everyone to go home because your spouse is insisting that you sign a contract you disagree with?
Marriage agreements are odd things anyway, as they tend to lend an unpleasant and sometimes petty dimension to what ought to be a joyous occasion. If there's no good reason to have a marriage agreement, don't have a marriage agreement.


On the other hand, there's nothing wrong with executing a marriage agreement after the ceremony, except that the spouse who wants the agreement loses a fair bit of bargaining power.
===Negotiating a marriage agreement===


===Avoid Do-It-Yourself Marriage Agreement Kits===
If a marriage agreement is appropriate and desirable, the people involved will negotiate the terms of the agreement and one or both of the parties will draft a written agreement. As with all family law agreements, it is important that both parties make complete financial disclosure and get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will impact on those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me."


Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.
Remember what section 93(3) of the ''[[Family Law Act]]'' says about the test to set aside agreements for the division of property and debt (the same principles apply to agreements about spousal support under section 164(3)):


In my view most of these do-it-yourself kits are fine for most people most of the time. They are not fine for marriage agreements. Marriage agreements can be terribly complicated, more so than separation agreements, and must be drafted with a good knowledge of family law in general and marriage agreements in particular. I really encourage you to avoid do-it-yourself marriage agreement kits.
<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>


If you figure that you absolutely must have a marriage agreement, it's well worth $1,500 to $4,000 to pay a lawyer to draw it up correctly for you now, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.
Marriage agreements should be signed well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and made. The emotional stress involved in arranging and potentially cancelling the wedding might be found to mean that someone was coerced into signing the agreement.  


==Legal and Formal Requirements of a Marriage Agreement==
On the other hand, there's nothing wrong with signing a marriage agreement after the ceremony, except that the spouse who wants the agreement loses a fair bit of bargaining power once the wedding is done.


The point of entering into a marriage agreement is so that, at some later time, the spouses will be required to abide by its terms and, if they don't, then the contract will be enforceable in court. As such, a marriage agreement, just like any other family law agreement, must conform to certain basic rules, including the following:
===Avoid do-it-yourself marriage agreement kits===


A marriage agreement must be set out in writing.
Bookstores and news stands often carry a wide range of DIY legal products, from doing your own will to getting your own divorce.
The agreement must be signed by each party, preferably in the presence of a witness.
Neither party can be under the age of majority (unless the minor has the capacity to marry and the permission of the court to enter into the marriage agreement), or suffer from any other legal disability.
The agreement must clearly identify the parties and the nature of their rights and obligations to one another.
Section 61 of the Family Relations Act defines "marriage agreement" for the purposes of Parts 5 and 6 of the act which deal with the division of property:


(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
In my view most of these do-it-yourself kits are fine for most people most of the time. They are not fine for marriage agreements. Marriage agreements can be terribly complicated, more so than separation agreements, and must be drafted with a good knowledge of family law in general, and marriage agreements in particular. Using a do-it-yourself marriage agreement kit is really not a good strategy.
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement ... must be in writing, signed by bouth spouses, and witnessed by one or more other persons.
This definition is only relevant if one of the spouses later makes a claim for a division of assets under the Family Relations Act and challenges the status of the marriage agreement. A proper marriage agreement doesn't have to deal with assets at all of course, but can instead just talk about issues like the care and control of children, spousal support, the division of labour during the marriage and so forth.


Don't worry about the gender requirement of s. 61(2); it is plainly unconstitutional and will be set aside if challenged.
If you figure that you absolutely must have a marriage agreement, it's well worth spending $1,500 to $4,000 to have a lawyer draw it up correctly for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.


In addition to complying with the basic formalities of a proper family law agreement (that the agreement be signed, that it be in writing and so on), certain principles of contract law should also be considered, including the following:
==Legal and formal requirements of a marriage agreement==


The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else... like a prospective in-law.
The point of entering into a marriage agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a marriage agreement, just like any other family law agreement, must conform to certain basic rules, including the following:
The parties cannot make an illegal bargain, that is, they can't form an agreement which obliges them to do something illegal or is otherwise against the law.
Where an agreement is prepared by one spouse's lawyer and the other spouse doesn't have a lawyer, any parts that are vague may be interpreted in favour of the spouse who didn't have the lawyer.
The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it to be void.
If a term of a marriage agreement is found to be invalid, only the invalid part of the agreement will fail. The remainder of the agreement will continue to be valid and binding on the parties.
Aside from these considerations, it is also important to remember that marriage agreements are usually only meant to be used at some unknown time in the future. While separation agreements are intended to work immediately from the moment they are signed, marriage agreements usually aren't intended to work until some later time, usually upon the spouses' separation. As a result, it can be extremely difficult to guess what each party's situation will be like at that future date and decide whether the agreement will still be appropriate, fair and relevant. Because of these problems, hiring the services of a lawyer to prepare the agreement is highly recommended. Crafting a solid marriage agreement can be a tricky business.


Finally, you should also know that the courts will rarely — if ever — uphold an agreement which attempts to avoid and "contract out" of a statutory obligation. Child support, for example, is a positive, almost absolute obligation a parent has towards his or her children. A court is not likely to allow an agreement to stand which provides that a parent will never have to pay child support.
*A marriage agreement must be in writing.
*The agreement must be signed by each party and should be signed in the presence of a witness. Although an agreement made without a witness can be valid and binding, it is a very good idea to have a witness so that they can confirm that the parties signed the agreement, in case one of them denies signing it in the future. As well, sections 94 and 165 of the ''Family Law Act'' prevent the court from making orders about property and debt that have been addressed in a written and witnessed agreement unless it sets the agreement aside.
*Neither party should be under a legal disability, like being under the age of majority or not being of sound mind, when signing the agreement. However, children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.


==Possible Subjects of a Marriage Agreement==
In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law like these:


A marriage agreement can address any number of subjects, and deal with anything that's a concern to one or both spouses. Typical subjects include the following.
*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about each party's income and each party's assets and debts.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may at some point in the future be interpreted by the court in favour of the party who didn't have the lawyer.
*The court will attempt to interpret and give a specific meaning to ambiguous terms of a contract wherever possible, rather than just setting the agreement aside.
*If a term of a marriage agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be binding on the parties.


How will the spouses own assets during the marriage?
Aside from these considerations, it's also important to remember that marriage agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a marriage agreement is highly recommended.
How will the spouses divide their property after the marriage? Will there be any division of property at all? Will the spouse without the assets receive a fixed share, or a share that increases as time goes on?
Will the spouses share in the value or cost of assets bought during the marriage, like a car or a house?
Will the parties have a share in assets brought into the marriage by one of the spouses?
How will unexpected windfalls like inheritances and lottery wins be dealt with? Will they be shared or kept separate?
How will household chores be shared during the marriage?
How will household expenses be paid for during the marriage? Will both spouses contribute to the bills? Will the bills be divided between them?
How will the spouses manage retirement savings during the marriage?
How will the children brought into the marriage from another relationship be dealt with during the marriage? Will any responsibilities survive separation?
How will children born during the marriage be cared for after separation?
Despite the provisions of s. 61(2) of the Family Relations Act, referred to above, the possible subjects of a marriage agreement are limited only by imagination, common sense and the law of contracts, and I've seen some fairly unique marriage agreements from time to time, including agreements, likely unenforceable, which talk about the frequency of sex and who will take out the garbage.


As a general rule of thumb, however, it's best to deal with the concrete things that exist at the time of the marriage (such as children from a previous relationship, existing debts, and existing assets) and things that the couple reasonably expect to happen during the marriage in the short term (such as receiving an inheritance or a court award). Dealing with things that might happen (like new children, a move to a new town or lottery winnings) is really speculative, and it's almost impossible to know how they should be dealt with if, at some unknown point in the future, the marriage comes to an end
==The possible subjects of a marriage agreement==


==Further Reading in this Chapter==
A marriage agreement can address any number of subjects, and deal with almost anything that's a concern to one or both spouses. Typical subjects include the following:


Return to the <span style="color: red;">first page</span> in this chapter.
*How will the parties own or buy property during their marriage, separately or jointly?
*How will the parties divide their property and debts after the marriage? Will there be any division of property at all?
*Will the parties share in the value or cost of property bought during the marriage, like a car or a house?
*Will the parties have a share in any excluded property brought into the marriage by one of the spouses?
*How will unexpected windfalls like inheritances and lottery wins be dealt with? Will they be shared or kept separate?
*How will the family home and jointly-owned property be dealt with if one of the spouses dies during the relationship?
*How will household chores be shared during the marriage?
*How will household expenses be paid for during the marriage? Will both parties contribute to the bills?
*How will the parties manage any retirement savings during the marriage?
*How will children brought into the marriage from another relationship be cared for during the marriage? Will any of these responsibilities continue after separation?


* other chapters
Except for the restrictions on agreements about parental responsibilities, parenting time, and child support, the possible subjects of a marriage agreement are limited only by your imagination, common sense, and the law of contracts. I've seen some fairly unique marriage agreements over the years, including agreements, likely unenforceable, that talk about the frequency of sex and who will take out the garbage.


==Page Resources and Links==
However, as a general rule, it's best to deal with the concrete things that exist at the time of the marriage (such as children from a previous relationship, existing debts, and existing property) and things that the couple can reasonably expect to happen during the marriage in the short term (such as receiving an inheritance or a court award). Dealing with things that ''might'' happen (like new children, a move to a new town, or lottery winnings) is really speculative, and it's almost impossible to know how they should be dealt with if, at some unknown point in the future, the marriage comes to an end.


Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.
==Resources and links==


===Legislation===
===Legislation===


*Supreme Court Act
 
*SC rules of court
*''[https://canlii.ca/t/8q3k Family Law Act]''
*Provincial Court Act
*''[https://canlii.ca/t/551f9 Divorce Act]''
*PC rules of court


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
*[https://www.clicklaw.bc.ca/resource/4653 Legal forms and documents] from Legal Aid BC
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.
**Under "Agreements" see "Making an agreement when you live together"
*[https://www.clicklaw.bc.ca/resource/4653 Legal forms and documents] from Legal Aid BC
**Under "Agreements" see "Who can help you reach an agreement?"
 
===Resources===
 
*[https://www.clicklaw.bc.ca/resource/1259 Marriage Agreements and Cohabitation Agreements] from Dial-a-Law by the People's Law School
*[http://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart"] from Legal Aid BC
** See chapter 2 on making agreements
*[https://www.clicklaw.bc.ca/resource/2627 Family Law in BC: Quick Reference Tool] from Legal Aid BC
 


{{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}}


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marriage agreements.

Marriage agreements are contracts signed by people either before they marry or shortly afterwards. Most marriage agreements are prepared and signed well before the date of that marriage, and that kind of approach to timing is usually a very good idea. Marriage agreements are normally intended to deal with some of the legal issues that may arise if the marriage breaks down, but they can also deal with how day-to-day things will be handled during the marriage.

This section discusses when and why marriage agreements are usually entered into, the legal requirements of a valid marriage agreement, and the possible subjects of a marriage agreement.

Entering into a marriage agreement

While a couple might enter into a marriage agreement with the intention of addressing things that could happen during the course of their marriage, more often these agreements are intended to address the issues that may arise if the marriage breaks down. Marriage agreements are binding on the parties the way any other legal contract is binding on people. They can be enforced by the courts if someone tries to avoid or change an obligation they have agreed to.

Most couples who marry do not have a marriage agreement. In fact, there is no law that says you must sign a marriage agreement if you're married or planning to marry someone.

The person you're planning on marrying can't force you to sign a marriage agreement either. Deciding not to sign a marriage agreement might end your relationship and the chances that you'll actually get married, but that's your choice. You don't have to sign a marriage agreement.

When a marriage agreement is a good idea

Marriage agreements are usually appropriate when:

  • one or both of the parties have a substantial amount of property going into the marriage,
  • one of the parties expects to acquire substantial property during the marriage, through, for example, a business, an inheritance, a settlement or court award, or a gift,
  • the parties want to avoid some of the stress and anger that can come after separation by deciding in advance how certain difficult issues, like the division of property and debt, will be dealt with,
  • one or both of the parties experienced an ugly court battle leaving a previous relationship,
  • one or both of the parties will be bringing children from a previous relationship into the marriage, or
  • one of the parties is entering the marriage with substantial debt.

In most cases, people generally want to protect the property that they're bringing into the marriage and avoid the scheme for dividing property and debt set out in the provincial Family Law Act; many people are looking for an "I'll keep what's mine, you'll keep what's yours" sort of deal, and that — or any other reasonable kind of arrangement — is precisely what you can get with a marriage agreement.

When a marriage agreement might be a bad idea

A marriage agreement may not be appropriate when:

  • neither party has significant property,
  • neither party has significant debts,
  • both parties are relatively young and expect their marriage to be permanent, and
  • neither party is bringing any children into the marriage from another relationship.

In circumstances like these, there really isn't much point to having a marriage agreement. There aren't any kids to worry about and neither party has any assets to protect going into the marriage. What purpose would a marriage agreement serve?

On top of that, the Family Law Act also says that an agreement made before the parties have separated cannot deal with:

  1. parental responsibilities and parenting time, or
  2. child support.

Marriage agreements are odd things anyway, as they tend to lend an unpleasant and sometimes petty dimension to what ought to be a joyous occasion. If there's no good reason to have a marriage agreement, don't have a marriage agreement.

Negotiating a marriage agreement

If a marriage agreement is appropriate and desirable, the people involved will negotiate the terms of the agreement and one or both of the parties will draft a written agreement. As with all family law agreements, it is important that both parties make complete financial disclosure and get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will impact on those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me."

Remember what section 93(3) of the Family Law Act says about the test to set aside agreements for the division of property and debt (the same principles apply to agreements about spousal support under section 164(3)):

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

Marriage agreements should be signed well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and made. The emotional stress involved in arranging and potentially cancelling the wedding might be found to mean that someone was coerced into signing the agreement.

On the other hand, there's nothing wrong with signing a marriage agreement after the ceremony, except that the spouse who wants the agreement loses a fair bit of bargaining power once the wedding is done.

Avoid do-it-yourself marriage agreement kits

Bookstores and news stands often carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. They are not fine for marriage agreements. Marriage agreements can be terribly complicated, more so than separation agreements, and must be drafted with a good knowledge of family law in general, and marriage agreements in particular. Using a do-it-yourself marriage agreement kit is really not a good strategy.

If you figure that you absolutely must have a marriage agreement, it's well worth spending $1,500 to $4,000 to have a lawyer draw it up correctly for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

Legal and formal requirements of a marriage agreement

The point of entering into a marriage agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a marriage agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

  • A marriage agreement must be in writing.
  • The agreement must be signed by each party and should be signed in the presence of a witness. Although an agreement made without a witness can be valid and binding, it is a very good idea to have a witness so that they can confirm that the parties signed the agreement, in case one of them denies signing it in the future. As well, sections 94 and 165 of the Family Law Act prevent the court from making orders about property and debt that have been addressed in a written and witnessed agreement unless it sets the agreement aside.
  • Neither party should be under a legal disability, like being under the age of majority or not being of sound mind, when signing the agreement. However, children who are parents or spouses may enter into a binding agreement.
  • The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law like these:

  • The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
  • Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about each party's income and each party's assets and debts.
  • Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may at some point in the future be interpreted by the court in favour of the party who didn't have the lawyer.
  • The court will attempt to interpret and give a specific meaning to ambiguous terms of a contract wherever possible, rather than just setting the agreement aside.
  • If a term of a marriage agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be binding on the parties.

Aside from these considerations, it's also important to remember that marriage agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a marriage agreement is highly recommended.

The possible subjects of a marriage agreement

A marriage agreement can address any number of subjects, and deal with almost anything that's a concern to one or both spouses. Typical subjects include the following:

  • How will the parties own or buy property during their marriage, separately or jointly?
  • How will the parties divide their property and debts after the marriage? Will there be any division of property at all?
  • Will the parties share in the value or cost of property bought during the marriage, like a car or a house?
  • Will the parties have a share in any excluded property brought into the marriage by one of the spouses?
  • How will unexpected windfalls like inheritances and lottery wins be dealt with? Will they be shared or kept separate?
  • How will the family home and jointly-owned property be dealt with if one of the spouses dies during the relationship?
  • How will household chores be shared during the marriage?
  • How will household expenses be paid for during the marriage? Will both parties contribute to the bills?
  • How will the parties manage any retirement savings during the marriage?
  • How will children brought into the marriage from another relationship be cared for during the marriage? Will any of these responsibilities continue after separation?

Except for the restrictions on agreements about parental responsibilities, parenting time, and child support, the possible subjects of a marriage agreement are limited only by your imagination, common sense, and the law of contracts. I've seen some fairly unique marriage agreements over the years, including agreements, likely unenforceable, that talk about the frequency of sex and who will take out the garbage.

However, as a general rule, it's best to deal with the concrete things that exist at the time of the marriage (such as children from a previous relationship, existing debts, and existing property) and things that the couple can reasonably expect to happen during the marriage in the short term (such as receiving an inheritance or a court award). Dealing with things that might happen (like new children, a move to a new town, or lottery winnings) is really speculative, and it's almost impossible to know how they should be dealt with if, at some unknown point in the future, the marriage comes to an end.

Resources and links

Legislation

Links

Resources


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023.


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