Marriage Agreements and Cohabitation Agreements (No. 162)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Renée Aldana, South Coast Law Group, and Zahra H. Jimale, Jimale Law Corporation in October 2018.

Not all relationships last forever. With a marriage agreement or cohabitation agreement, couples can plan for if their relationship ends, as well as how to handle things while they are together.

Understand your legal rights

The purpose of a marriage or cohabitation agreement

Marriage and cohabitation agreements are contracts. As with a contract you might have with a landlord or an employer, each party promises to do something in exchange for something the other party promises to do.

A marriage agreement can be between spouses who are already married, or people who are planning to marry.

A cohabitation agreement can be between people who are already living together or people who are planning to live together.

(Under the BC Family Law Act, couples are “spouses” if they are married or have lived together in a marriage-like relationship for at least two years. Couples who have 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.)

Marriage and cohabitation agreements set out promises each person makes to the other, usually about what will happen if the relationship ends, but sometimes also what will happen during the relationship. The main goal is to avoid future conflict.

These types of 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 party is bringing more money or debt into the relationship.

The legal requirements for an agreement

A marriage or cohabitation agreement must be in writing. Both parties must sign the agreement, and their signatures must be witnessed by at least one other person. The witnesses are not bound by the agreement — they are just saying they saw the parties sign the agreement.

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, and 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. It might also say in the event you separate, one of you will have the right to stay in the family home (at least temporarily) and perhaps receive support from the other for a certain time as well as a certain portion of the property you acquire during the relationship. It may also say that each of you will get an increasing share of the other’s own “excluded property” the longer the relationship lasts. 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 during the relationship.

Issues a marriage or cohabitation agreement can’t deal with

The law imposes certain obligations on married and unmarried spouses that they cannot contract out of with an agreement — such as the legal duty of each parent to provide support for their child.

Under the Family Law Act, any agreement about parenting arrangements or the payment of child support is only binding if it is made after separation or when the parties are about to separate.

The enforceability of an agreement

A court can overturn a marriage or cohabitation agreement where a party behaved unfairly or took advantage of the other party. For example, an agreement may be set aside where a party failed to disclose significant property or debts. Or 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, fairness in the way it is drafted, and fairness in the way it is signed.

A key way to achieve fairness is to have each party get independent legal advice before signing the agreement. This involves each party meeting 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. An agreement can be 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, the parties must sign the new agreement and their signatures must be witnessed.

Common questions

My fiance is pressuring me to sign a marriage agreement. Do I have to?

No. There is no legal requirement that you must 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.

Should I see a lawyer to prepare an agreement?

If you want to make a marriage or cohabitation agreement, you can write down some general ideas and expectations with your partner and either prepare a written agreement based on these notes or have a lawyer draft the agreement.

Whether you have a lawyer write the agreement or not, it is highly advisable to meet with a family law lawyer for advice about how the agreement affects your rights and obligations, before you sign it.

Should my spouse and I use separate lawyers?

This may seem unnecessary when the two of you have an agreement. But as a general rule, each person who enters 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 ensures the parties know exactly what their rights and obligations are, and it makes the agreement stronger by preventing a party from claiming later on they didn't fully understand what the agreement meant or how it would impact them.

Get help

With more information

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has indepth information on marriage agreements and cohabitation agreements, including drafting tips.

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.

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