The period before marriage is a whirlwind of plans. There’s a guest list to work out, venue to be booked and it’s easy to put “non-essential” items on hold. As a result, we’re seeing an increase in couples getting married without a prenuptial agreement in place.
This valuable legal document is road map for how any future split will be handled by the couple. It records shared aspects of the relationship that will continue existing beyond its end, such as guardianship, shared property, spousal support and child support. It’s an effective method of settling family law disputes without having to go through the Canadian court system.
If a couple gets married without a prenuptial agreement, is it possible to draft one up after the fact? Let’s examine this common scenario.
Creating a Prenuptial Agreement After Marriage
The process of drafting a prenuptial agreement is the same for a couple before marriage or after marriage. The couple begin by sitting down and having a frank discussion about how things can and should be divided should they choose to separate. It’s important to approach these discussions with an open mind and a willingness to compromise. Here are some guidelines to follow for common areas of a prenuptial agreement.
Under BC’s Family Law Act, family property (and debt) is typically split 50/50 between each party after the relationship ends. It’s highly recommended you both make a list of your assets (along with the approximate value) and attach this list to the prenuptial agreement as an appendix. This means you can both see what the other has listed and assess whether your property have been properly divided.
Creating a Parenting Plan
Couples with children should chart how access to the children will be handled in the event of a divorce. Here are several common considerations to think about when drafting your parenting plan:
- Who will have the child on special occasions (birthdays, Christmas, summer break, etc.);
- Can the child travel out of country with one parent (also includes issues such as getting a passport for the child);
- Agreeing on how to communicate about the child (sometimes lines of communication can halt following a break-up); and
- What will happen if one parent needs to move to another province or country.
If one party made sacrifices for the relationship (gave up their career to look after the home or children), or needs some financial support after moving out, they might be entitled to spousal support. Typically, the longer the relationship was, the more likely it is that one party will have to pay spousal support. When it comes to spousal support, it’s worth speaking to a family law expert as this can be a very emotive and subjective topic.
Insurance Policies and Wills
According to BC’s Wills, Estates and Succession Act, if your relationship ends your former spouse will no longer be a beneficiary or executor in your will. That doesn’t mean they still can’t be part of it. If you still want your former spouse to share in your estate, or if this is a term in your prenuptial agreement, you must execute a new will which explains this explicitly. It’s also worth examining any insurance policies that list your ex-spouse as the beneficiary.
Speak to an Expert
Westside Family Law can assist with any legal aspect of the prenuptial agreement process. Contact us and we’ll be happy to assist.