Cohabitation Agreements – Marriage Agreements (Prenuptial Agreements)

Cohabitation agreements and marriage agreements, which are sometimes called “prenuptial agreements”, are contracts agreed upon by couples that often contain provisions regarding the division of assets, and debts, and spousal support payments in case the relationship ends. The agreement may also govern how the couple will manage assets, and debts, and expenses during the relationship.

The difference between a cohabitation agreement and a marriage agreement is that in the latter, the couple is married or will be married shortly. A cohabitation agreement can be entered into before or during a couple’s cohabitation.

Both cohabitation agreements and marriage agreements are legally binding contracts as long as the agreement is:

  • In writing;
  • Signed by both parties;
  • Witnessed by at least one person; and
  • Entered into with full disclosure and honesty from each partner.

Cohabitation agreements and marriage agreements are a proactive form of family planning that, if drafted correctly, can help couples reduce the time, stress, and cost of separating. They are often used if one or both partners are bringing a significant amount of assets or debts into the relationship. These agreements are common in second relationships or if the couple has a child or children from a previous relationship because the agreement can protect the assets and debts of each partner.

Cohabitation agreements and marriage agreements can be altered as long as both parties agree to the change(s). The couple can make a second agreement, or they can amend the original agreement. Similar to the original agreement, the revised agreement must be signed by the couple and witnessed by at least one person. Health Law can assist you with alterations to your existing agreement.

Cohabitation agreements and marriage agreements cannot include provisions that concern parenting issues or child support payments as the Family Law Act of British Columbia precludes this.

If couples do not have a cohabitation agreement or a marriage agreement, the separation will be governed by the Family Law Act which requires assets and debts to be split evenly, with some exceptions. Under the Family Law Act, couples are “spouses” if they are married or if they have lived in a marriage-like relationship for at least two years.

It is recommended that each partner obtain independent legal advice prior to signing a cohabitation or a marriage agreement. Seeking legal advice will ensure the agreement is drafted fairly and that both parties understand the legal consequences flowing from the agreement.

Contact Heath Law LLP for:

  • Drafting cohabitation agreements
  • Drafting marriage agreements
  • Changing or cancelling your cohabitation or marriage agreement

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