What are prenuptial, cohabitation, and marriage agreements—and why might you want one? In this blog, we’ll explore the various kinds of relationship agreements as they pertain to BC Family Law.

Defining Prenuptial Agreements, Cohabitation Agreements, and Marriage Agreements

Despite agreements that spouses may enter into before or during their common-law relationship or marriage being referred to by various terms, legally speaking these terms are not different. For the sake of accuracy, the title chosen in any particular case will typically reflect the status of the relationship at the relevant time, but this doesn’t usually carry a legal implication (in some circumstances, a title may be evidence when the type of relationship and/or the start date of the relationship is disputed, but this is a topic of its own).

If a couple is anticipating marriage, the agreement will often be termed a ‘prenuptial agreement’. If they are living or intend to live together as common law spouses, the agreement will usually be termed a ‘cohabitation agreement’. And finally, if the parties are already married, the agreement will usually be termed a ‘marriage agreement’.

What is distinct is a separation agreement: Unlike the agreements discussed here, a separation agreement is entered into after a relationship has ended, and this is a different process which requires unique considerations. More to come on those in a future blog post!

Entering Into A Relationship Agreement

As might be clear from the above, an agreement can be entered into at various relationship stages. While the title of an agreement may not matter in most cases, the time at which spouses enter, or try to enter, into an agreement can matter. Every relationship and set of circumstances is different—there is no right time for an agreement that will apply to every situation.

Generally speaking, the sooner a conversation is had about both spouses’ expectations and an agreement is reached, the better. Parties can then have some predictability early on and conduct themselves accordingly. This avoids the risk of a relationship breaking down before they’ve reached an agreement, which would leave them subject to the default laws in place.

However, sometimes there may be unknown factors that affect what an appropriate agreement looks like, and it may make sense to wait to enter into one. Or, if the unknowns may not be resolved for some time, it may be preferable to enter into an agreement that accounts for contingencies and/or is subject to being reviewed.

What Can A Relationship Agreement Cover?

Relationship agreements can deal with a variety of issues, but most commonly they will revolve around the issues of property division and/or spousal support. In the absence of an agreement, the laws in place that govern both of these subjects will apply by default. However, if one or both spouses are concerned about the implications of those laws for themselves, they may wish to contract out of all or some of them by agreement.

Issues of parenting arrangements and child support cannot be addressed in these agreements. Any decisions about children have to be made with regard to their best interests at the relevant time (i.e. separation), and the best interests of children (who may not even exist at the time of the agreement) cannot be determined in advance.

Circumstances Where Courts May Change A Relationship Agreement

When contracting out of the default laws, spouses should keep in mind that while there is no hard limit on what they can or cannot agree to, certain terms may become vulnerable to being set aside by the courts if, at the time the agreement becomes operative, it is determined to be significantly unfair.

This can occur in multiple ways, but an example of one type of situation that can often arise and lead to significant unfairness is as follows: The spouses have waived spousal support in their agreement, expecting that they will both have careers and remain self-sufficient if they separate, but one subsequently gives up their career prospects to be a stay at home parent. Then, at separation, one spouse is in a substantially advantaged position regarding earning potential at separation, while the other is disadvantaged and maybe even significantly struggling. The courts may set aside a spousal support waiver in such a situation.

Other Factors To Consider

It is also important to consider that any agreement must be procedurally fair. This means, among other things, that each spouse has provided adequate disclosure, has had a chance to obtain legal advice, and has not been pressured into signing an agreement.

The appropriate way to proceed will depend on the specific circumstances, and legal advice should be obtained before spouses enter into a binding agreement.

If you require a prenuptial, cohabitation, or marriage agreement, lawyers at Westside Family Law are pleased to help with their expertise in this area of law.