Marriage Agreements and Cohabitation Agreements
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye in April 2020.|
Not all relationships last forever. But the law can help. A marriage agreement or cohabitation agreement can set out how couples will deal with issues that come up if their relationship ends. These types of agreements can also cover what will happen during their relationship. Learn more about these agreements.
“I own a condo and have some good investments that have added up over the years. My partner Krystle will be moving in with me in a few weeks. We’ve talked about making a cohabitation agreement. She doesn’t own property, but she owns an antique car she inherited from her dad and has some savings. We’ve decided that each of us will keep what we own before we start living together and want to put this in writing.”
– Levi, Campbell River, BC
What you should know
What is a marriage or cohabitation agreement?
Marriage and cohabitation agreements are contracts. They set out promises each person makes to the other. The promises are usually about what will happen if the relationship ends. But they can also set out what will happen during the relationship if problems arise. The main goal is to head off future conflict.
A marriage agreement can be made between spouses who are already married. Or it can be made by a couple planning to marry. It’s optional. You don’t have to make a marriage agreement before or after you marry someone.
A cohabitation agreement can be made between two people who are already living together, or who are planning to live together. Again, you don’t have to make a cohabitation agreement before or while you live together.
Under the BC Family Law Act, couples are considered spouses if they’re married or have lived together in a marriage-like relationship for at least two years. Couples who’ve lived together in a marriage-like relationship for less time but have a child together are also spouses (except for when it comes to property, debt, or pensions).
These types of agreements are often used at the start of second relationships — especially when there are children from a previous relationship. They’re also common when one party is bringing more money or debt into the relationship.
Issues a marriage or cohabitation agreement might deal with
Typically, a marriage or cohabitation agreement talks about how property and debts will be managed during the relationship. Each type of agreement also talks about how property and debts will be divided if the couple breaks up. They sometimes also say if spousal support will be paid if the relationship ends.
For example, an agreement might say that in the event you and your partner split up:
- each of you will keep whatever property you had before you started living together
- one of you will have the right to stay in the family home (at least temporarily)
- one of you will (or won’t) receive support from the other for a certain period of time
- one of you will get a certain share of the property you acquire during the relationship
There are many possible arrangements for how property, debts, and spousal support can be dealt with.
A marriage or cohabitation agreement might also cover what will happen during the relationship. For example, it might say how household chores or household expenses will be handled.
Issues a marriage or cohabitation agreement can’t deal with
Married and unmarried spouses have certain legal obligations, like supporting their children. They can’t make an agreement to get out of these obligations.
Under the Family Law Act, any parenting or child support agreement is only binding if it’s made when the parties are about to separate or after they actually do.
The legal requirements to make an agreement
A marriage or cohabitation agreement must be in writing. Both parties (the people who enter into an agreement) must sign the agreement. Their signatures should be witnessed by at least one other person. Witnesses aren’t bound by the agreement — they’re just saying they watched the parties sign it.
The enforceability of an agreement
In BC, a court can set aside part or the whole of a marriage or cohabitation agreement. This can happen if the agreement is found to be significantly unfair.
A court can set aside a marriage or cohabitation agreement where one party took advantage of the other. For example, if one party failed to tell the other about significant property or debts, an agreement may be set aside. Similarly, an agreement signed under pressure a day or two before a wedding may not be enforceable.
There must be fairness in the way the agreement is negotiated, in the way it’s drafted, and in the way it’s signed.
A key way to have fairness is to have each party get independent legal advice before signing the agreement. That is, each party meets with their own lawyer to get advice about:
- what the agreement means,
- what rights and obligations the agreement gives to each party, and
- how the agreement affects other legal options that might otherwise be available.
Changing or ending an agreement
The parties to a marriage or cohabitation agreement can always change or cancel their agreement if they both agree to do so. The parties can change an agreement by making a second written agreement called an addendum agreement or an amending agreement. This second agreement can change some parts of the first agreement, or can cancel and replace it. Like the first agreement, the parties must sign the new agreement and have their signatures witnessed.
The Family Law website from Legal Aid BC has detailed information and steps for changing agreements.
My fiance is pressuring me to sign a marriage agreement. Do I have to?
No. There’s no legal requirement that you have a marriage agreement if you're planning to marry someone. (Or a cohabitation agreement if you’re planning to live with someone.) You can't be forced to sign one. A court may set aside an agreement you were pressured into.
Should my spouse and I use separate lawyers?
If you want to make a marriage or cohabitation agreement, you can write down some general ideas and expectations with your partner. Then you can either prepare a written agreement based on these notes or have a lawyer draft the agreement.
Whether or not a lawyer writes the agreement, you should meet with a family lawyer for advice and to ensure you understand your rights and obligations. Some lawyers offer unbundled legal services. This is when a lawyer handles specific parts of your case without taking on the whole thing. Such a lawyer can look at a draft of your agreement. They can explain how the agreement affects your rights and obligations before you sign it.
Should my spouse and I use separate lawyers?
This may seem unnecessary. But as a general rule, both parties entering into a marriage or cohabitation agreement should get independent legal advice (advice from their own lawyer) before signing the agreement.
Independent legal advice is important for two reasons:
- it helps the parties know exactly what their rights and obligations are, and
- it makes the agreement stronger by preventing either party from later claiming they didn’t fully understand parts of it or how it would impact them.
To save money, one spouse’s lawyer could prepare the agreement. Then the other spouse’s lawyer could provide that spouse with legal advice.
Who can help
With more information
The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has in-depth information about marriage agreements and cohabitation agreements, including drafting tips.
The Family Law website by Legal Aid BC has information about agreements, including cohabitation agreements.
Free and low-cost legal help
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