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{{JP Boyd on Family Law TOC|expanded = agreements}} | {{JP Boyd on Family Law TOC|expanded = agreements}} | ||
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|link = [http://clicklaw.bc.ca/global/search?k=marriage%20agreements marriage agreements] | |||
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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. | 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. | ||
This page | This page 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 | ==Entering into a marriage agreement== | ||
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 may be enforced by the courts if someone tries to escape 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 may be enforced by the courts if someone tries to escape or change an obligation they have agreed to. | ||
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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.'' | 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.'' | ||
===When a | ===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 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 family property and family 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 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 separation agreement. | 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 separation agreement. | ||
===When a | ===When a marriage agreement is a bad idea=== | ||
A marriage agreement may not be appropriate when: | A marriage agreement may not be appropriate when: | ||
*neither party has significant property, | |||
*neither party has significant debts, | |||
*both parties are relatively young and intend the marriage to be permanent, and | |||
*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? | 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? | ||
As well, the ''Family Law Act'' also says that an agreement made before the parties have separated cannot deal with: | As well, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with: | ||
#parental responsibilities and parenting time | #parental responsibilities and parenting time, or | ||
#child support. | #child support. | ||
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. | 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. | ||
===Negotiating a | ===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 for review and maybe signing. 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 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" and challenging the agreement later on. | 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 for review and maybe signing. 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 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" and challenging the agreement later on. | ||
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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. | 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 | ===Avoid do-it-yourself marriage agreement kits=== | ||
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. | 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. | ||
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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. | 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. | ||
==Legal and | ==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: | 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: | ||
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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 guess 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. Crafting a solid marriage agreement is a tricky business at the best of times. | 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 guess 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. Crafting a solid marriage agreement is a tricky business at the best of times. | ||
==The | ==The possible subjects of a marriage agreement== | ||
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. | 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. | ||
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Except for the restrictions about parental responsibilities, parenting time and child support, 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, that talk about the frequency of sex and who will take out the garbage. | Except for the restrictions about parental responsibilities, parenting time and child support, 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, that talk about the frequency of sex and who will take out the garbage. | ||
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 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 | 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 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. | ||
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==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
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* other chapters | * other chapters | ||
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==Page | ==Page resources and links== | ||
===Legislation=== | ===Legislation=== | ||
*''[Family Law Act]]'' | |||
*''[[Divorce Act]]'' | |||
===Links=== | ===Links=== | ||
* | * [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation] | ||
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?] | |||
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements] | |||
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements] | |||
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness] | |||
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