When we think of marriage, we often picture romance, commitment, and a shared future. Legal agreements? Not so much. Yet, a “Marriage Agreement” can be one of the most sensible and relationship-affirming steps a couple can take in British Columbia. If you sign an agreement before you say “I do,” it’s called a Prenuptial Agreement. If you sign it after, it’s a Marriage Agreement or Postnuptial Agreement.
Many couples, especially those already married, don’t realize they can still enter into a formal agreement to define their financial landscape. Let’s dive into what these agreements are, how they work in BC, and why they’re not just for the ultra-wealthy or those expecting a split.
What Exactly IS a Marriage Agreement in BC?
In BC, a Marriage Agreement is a legal deal you and your partner make after tying the knot. It spells out your rights and responsibilities during the marriage and what happens if you separate or divorce.
There are two different agreements you will often hear floating around. These are:
- Prenuptial Agreement (Prenup): You sign this agreement before tying the knot. It sets out how you’ll handle financial stuff if the marriage ends.This is not a Marriage Agreement.
- Marriage Agreement (Postnuptial Agreement): You sign this agreement after you’ve tied the knot. It works just like a prenup, but it’s for couples who are already married. People might opt for this if their circumstances change, they didn’t consider one before, or they simply want to bring clarity to their financial partnership later on.
Why Consider a Spousal Agreement? It’s Not About Planning to Fail!
Think of it like insurance: you hope you never need it, but you’re glad it’s there if you do. A well-drafted Spousal Agreement can:
- Provide Clarity and Certainty: Your agreement spells out how you’ll handle assets and debts, so there’s less confusion and fewer fights if you ever separate.
- Protect Assets: You can specify that property owned by one spouse before the marriage remains their separate property (beyond what the Family Law Act already defines as “excluded property”).
- Safeguard Inheritances or Gifts: If one of you gets an inheritance or a major gift during the marriage, your agreement can make sure it stays with that person.
- Address Business Interests: If either of you runs a business, your agreement can lay out what happens to it after a split and help keep it protected.
- Plan for Second Marriages/Blended Families: Crucial for protecting assets intended for children from previous relationships.
- Define Spousal Support: You can agree on terms for spousal support (how much, for how long) or even waive it entirely (though courts can review waivers for significant unfairness).
- Reduce Conflict and Legal Costs: In the unfortunate event of a separation, having an agreement in place can significantly simplify the process, saving emotional distress and substantial legal fees.
- Promote Open Communication: The process of creating an agreement requires honest conversations about finances, expectations, and the future – which can actually strengthen a relationship.
What Typically Goes into a Spousal Agreement?
- Division of Property: How you and your partner will divide “family property” (assets acquired during the marriage) and “excluded property” (assets you brought into the marriage, inheritances, etc.). You can deviate from the Family Law Act’s presumptive 50/50 split of family property if you both agree.
- Responsibility for Debts: You and your partner get to choose how you’ll handle any debts from before or during the marriage.
- Spousal Support: You and your partner can decide together whether support gets paid, who pays, how much, and for how long.
- Business Assets and Pensions: Specific provisions for these often complex assets.
- Other Financial Matters: Anything else related to your financial lives you wish to address.
- Estate Planning: It’s pretty common for couples to sort this out ahead of time so things go the way they planned. This could mean waiving their claims to eachother’s estates, so that their wills can give property to other parties.
What a Spousal Agreement
It’s vital to understand that in BC, a Spousal Agreement cannot pre-determine issues related to children. This includes:
- Child Custody (Parenting Arrangements and Parenting Time)
- Child Support
If you separate, the court looks at what’s in the “best interests of the child” to make decisions, and it uses the Child Support Guidelines to determine child support. Any clauses attempting to fix these in advance will generally not be enforceable.
How Does “Getting” a Marriage Agreement Work? Key Steps for Validity:
For your Marriage Agreement to be considered valid and enforceable in BC, certain conditions generally need to be met:
- Full and Honest Financial Disclosure: Both spouses must provide complete and accurate information about your assets, debts, and income. Hiding assets or misleading the other party can be grounds to have the agreement set aside.
- Independent Legal Advice (ILA): Although the law doesn’t strictly require it, you should each get advice from your own separate lawyer before signing the agreement.This ensures both parties understand your rights, the implications of the agreement, and that you are not signing under duress or undue influence. Lack of ILA can be a significant factor if one party later tries to challenge the agreement.
- No Duress or Undue Influence: You and your partner must both willingly sign the agreement. If either of you feels pressured, threatened, or forced, the court might not accept it.
- Understanding the Terms: Both parties should understand what they are signing.
- Fairness (Generally): Even if you and your partner agree to something different from what the Family Law Act says, a court can throw out all or part of your agreement if it thinks it’s “significantly unfair.” The law lays out specific rules for this, like in Section 93 for dividing property and Section 164 for spousal support or waivers).
It’s Not “Unromantic” – It’s Responsible Planning
Some people shy away from Spousal Agreements, thinking they’re unromantic or imply a lack of trust. In reality, they are a tool for responsible financial planning and open communication. Discussing these matters openly can build a stronger foundation for your marriage by ensuring you’re both on the same page.
Imagine building your dream home together. You’d discuss blueprints, choose materials, and plan for every contingency. It’s not because you expect it to fall, but because you cherish it and want it to stand strong. A Marriage Agreement is like the blueprint for your financial life together.
Whether you’re about to walk down the aisle or have been married for years, exploring a Marriage Agreement is a wise decision.
Take the Next Step:
Thinking about a Marriage Agreement? The first step is to book a consult with us. We’ll walk you through your rights, explain what you’re responsible for, and help create a fair, enforceable agreement that fits your situation.
📅 Book your consultation or check out our Marriage Agreement pricing to learn more.
Disclaimer:This blog post is for informational purposes only and does not constitute legal advice. Family law is complex and individual situations vary. You should consult with a qualified family lawyer in British Columbia to discuss your specific circumstances.