BC Marriage Agreements are agreements entered into by couples who are not yet married or are actually married. The BC Family Law Act says that a valid BC marriage agreement must must be 1) in writing and 2) witnessed by at least one person. If the agreement meets this criteria, it is called a marriage agreement but there is no guarantee it will ever be upheld or not successfully challenged.
A proper BC marriage agreement or prenuptial agreement as they say in the U.S. is the best thing you or your spouse can do to avoid court litigation and spending thousands of dollars on legal fees upon separation. But that means you will each have to make full disclosure, have the assistance for separate family lawyers and adhere to numerous other rules.
Let’s see what BC marriage agreements can do:
What Can a BC Marriage Agreement Do?
- Set out how property is to be divided at the time of separation. For example, if you want to have all property you brought in to the marriage and property you bought with your own money during the marriage, you can put it in a marriage agreement.
- Set out if and how much spousal support should be payable. For instance, if you have a high income and you do not want to pay spousal support at the time of separation, you and your spouse can opt out of spousal support. You can also negotiate spousal support, periodic or lump sum, in the BC marriage agreement.
- Set out what happens after your death. If you want your assets to go to your heirs and not your separated spouse, you can agreement to that in a marriage agreement.
- Set out responsibility for debts. The Family Law Act says that generally spouses are equally responsible for relationship debts. If your spouse has very high debts you do not want to be responsible for, then you can opt out of having to pay for those debts at the time of separation and in the marriage agreement.
- Set out child support and custody arrangements. These provisions may not be enforceable at the time of separation depending on your children’s situation but they provide good evidence about your ability to parent the children and your spouse’s agreement to same.
- Prevent future court proceedings: these agreements can state that any court proceedings in conflict with the marriage agreement must be dismissed and your spouse would have to pay for your legal costs if he/she commences them.
- Set out Guidelines: this is the most important part of BC marriage agreements. They provide guidelines on how to spent or save your money during the marriage. At the time of separation, you won’t have to worry about any debates as the agreement clearly sets out the rules and procedures at separation.
Are BC Marriage Agreements Effective?
BC Marriage Agreements are only effective and enforceable if you follow multiple rules. If you violate one or more rules, the marriage agreement can easily be set aside or cancelled. That is why it is best to consult with a marriage agreement lawyer and have them do the agreement for you. Marriage agreements are like insurance: you pay $2000 for your car insurance every year, why wouldn’t you invest a fraction of that in a BC marriage agreement that could save you fortunes if the relationship does not work out?
BC marriage agreements are not always effective. For example, if you had entered into a marriage agreement 30 years ago and circumstances change to the point that the marriage agreement is very unfair or no longer makes sense, then the marriage agreement may not be completely effective.
Another example: if at the time of marriage you and your spouse earned similar incomes and 30 years later, you earned $2 million dollars a year and your spouse earned nothing, then the marriage agreement may be considered significantly unfair. Generally though, the Court very much tries to uphold marriage agreements as long as rules are followed.
Rules to Follow for BC Marriage Agreements
- The most important thing is that you and your spouse obtain independent legal advice before entering the marriage agreement. Otherwise you or your spouse can apply to cancel the marriage agreement because you did not fully know of your legal rights and did not know what you were getting into. If you do not obtain independent legal advice, you may as well not even enter into a marriage agreement. It is extremely important for the marriage agreement to be effective.
- You and your spouse must fully disclose all your finances at the time of marriage agreement. If there is any misrepresentations, the marriage agreement can be set aside.
- Don’t try to fly too high with the marriage agreement. Try to be fair. If you are not fair, then the agreement may be set aside. A marriage agreement lawyer can help you draft the agreement in a way that will operate fairly in the present and the future; and will reduce your risks and costs.
- Take your time to negotiate. BC Marriage agreements entered in to on the day or immediately before marriage can be set aside because not enough time was set aside to do negotiation.
- The marriage agreement needs to comply with BC laws and Canadian policy. Save the $10 for downloading that Google template because those agreements are for U.S. marriage agreements and not made in Canada or BC. So you will risk the agreement being set aside because it didn’t comply with BC rules or law.
To learn about separation agreements, click here.
There are a host of other factors to consider before entering into BC marriage agreements. Contact us to help you with your BC marriage agreement which may save you fortunes in the future.
The content of this page was updated in August, 2017 for more freshness, comprehensively and accuracy.