A prenup is actually more of an American term. In British Columbia, they’re called either cohabitation agreements if you’re common-law, or marriage agreements if you’re married or planning to get married. They are legal contracts set out by a couple in which both parties list their expectations about what will happen in the event that the relationship ends.
The agreement should involve some consideration of what you expect your lives together will look like and what you think a fair outcome would be if your relationship was to end. It should take into account the assets that each person went into the relationship with and the roles they expect to assume in the relationship itself, among other factors.
Limitations on Cohabitation and Marriage Agreements
There is a limit to the kinds of issues you can sort out in a cohabitation or marriage agreement. For instance, you cannot have a binding agreement about what the parenting schedule will be or who will make important decisions about your children in the event that your relationship ends in the future. This is because any parenting arrangements for children have to be in their best interests, and that’s better determined when you actually separate as children’s needs and parents’ abilities to meet those needs can change over time. You also cannot have a binding agreement about who will pay child support if you separate, or how much child support will be. This is because child support needs to conform with the Child Support Guidelines, which takes into account how much time the children are spending with each parent and how much each parent is earning at a particular time to determine who pays whom, and how much.
You can, however, make an agreement about how you are going to divide your property in the event that the relationship ends. You can also make an agreement about whether or not one of you will pay spousal support (sometimes called “alimony”) to the other if the relationship ends. As discussed in my previous article, these agreements can potentially be subject to challenge in the future, and the strength of these agreements will depend on a number of factors including whether each party had all of the financial information they needed to make an informed decision about whether or not they should enter into that agreement, whether each party fully understood the meaning and consequences of the agreement, and whether or not something unexpected has happened since the signing of the agreement that would now make that agreement unfair.
Seek Professional Help
A fairly negotiated and thoughtfully drafted agreement can help minimize conflict at the end of a relationship, in the event that it happens. Cohabitation or marriage agreements can also be a great resource for a couple by clearly identifying expectations and outcomes for that relationship from the start.
However, a cohabitation or marriage agreement is still a legal contract which can have lasting consequences that it is important to fully understand. For this reason, it is always recommended to seek legal advice when drafting an agreement or deciding whether to sign it. Properly executed agreements where neither party had advice from a lawyer can still be upheld by the court in many cases, but legal advice helps both parties to understand whether an agreement would be fair if it was enforced. On the other hand, sometimes agreements can be challenged in court on the basis that one party did not understand the agreement when they signed, and now that they know more about it they find it unfair. Making sure that the other party gets proper and comprehensive legal advice on an agreement before they sign can help guard against a future claim that that party did not understand what they were agreeing to.
If you’re considering a cohabitation or marriage agreement, let us help you negotiate a fair agreement that both you and your partner can be satisfied with.