Difference between revisions of "Marriage Agreements"

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

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 typically these agreements are intended to address the issues that will arise if the marriage breaks down. Marriage agreements are binding on the parties as a legal contract. They may be enforced by the courts if someone tries to escape or change an obligation they have agreed to.

Most couples who marry do not have a marriage agreement. It is important to note that there is no legal requirement that you must enter into such an agreement if you're getting married. You cannot be forced into a marriage agreement.

*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 family property and family debt, will be dealt with,

*both parties are relatively young and intend the marriage to be permanent, and

In circumstances like that, 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?

As well, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with:

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 occasion. If there's no good reason to have a marriage agreement, don't have a marriage agreement.

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.

*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 still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.

*Neither party should be under a legal disability when they sign the agreement. Note, however, that being a minor is not a legal disability in cases where that person is also a parent or a spouse. In such a case, that person can be under the age of majority, but can still enter into a binding agreement.

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

*Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about the parties' assets and debts, as well as information about the values of the assets and amounts owing on the debts.

*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.

*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

*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 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 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.

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:

*How will the spouses own property during the marriage, separately or jointly?

*How will the spouses divide their property and debts after the marriage? Will there be any division of property at all?  

*Will the spouses share in the value or cost of property bought during the marriage, like a car or a house?

*How will the spouses deal with their residence and/or jointly owned property if one of the spouses dies during the relationship?

*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 continue after separation?

*How will children born during the marriage be cared for after separation?

However, as a general rule of thumb, 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.

*''[[Family Law Act]]''

*''[[Divorce Act]]''

* [https://clicklaw.bc.ca/resource/4653 Legal Services Society's Family Law website's information page "Legal forms & documents"]

* [https://clicklaw.bc.ca/resource/4653 Legal Services Society's Family Law website's information page "Legal forms & documents"]

*[http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ''Living Together or Living Apart''], chapter 2 on making agreements

*[http://www.clicklaw.bc.ca/resource/1259 Dial-A-Law Script "Marriage Agreements and Cohabitation Agreements"]

{{REVIEWED | reviewer = [[Gagan Mann]], June 3, 2019}}