Marriage Agreements and Cohabitation Agreements

Script 162 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

Relationships don’t always last forever

About one in every two marriages will end in a divorce. The rate of the breakdown of unmarried relationships is even higher. Although you love the person you are living with and probably expect the relationship to be permanent, it’s sometimes prudent to make plans how things will unfold in the event it comes to an end.

You could consider a marriage agreement or a cohabitation agreement
This script will tell you about marriage agreements and cohabitation – what they are, what they can and can’t do, and the reasons for having or not having one. Note that this script only covers married spouses and unmarried spouses. People who aren’t spouses or don’t think they will become spouses require special legal advice.

Who is a spouse?
Under the provincial Family Law Act, a spouse is:

  • someone who is married;
  • someone who has lived with someone else in a marriage-like relationship for at least two years; and
  • for the parts of the Family Law Act that don’t deal with property and debt, someone who has lived with someone else in a marriage-like relationship for less than two years if the couple has had a child together.

What are marriage agreements and cohabitation agreements?
Marriage agreements and cohabitation agreements are legal contracts, just like any other type of contract such as the contract you might have with a landlord or a business partner. They are written documents that summarize each person’s legal obligations to the other.

Marriage agreements can be between spouses who are already married, or people who are planning to marry. Cohabitation agreements can be between people who are already living together or people who are planning to live together and expect to be living together.

Marriage agreements and cohabitation agreements identify who each of the parties are and usually makes some statement about the purpose of the agreement. Then they set out a series of promises that you each make to the other, usually about what will happen in the event the relationship ends, but sometimes also about what will happen during the relationship. They also say when they will take effect, which might be the date the couple marry or begin living together, or the date the agreement is signed.

What are the legal requirements for a marriage agreement or cohabitation agreement?
Marriage agreements and cohabitation agreements must be in writing. Both of you must sign the agreement, and your signatures must be witnessed by at least one other person. The witnesses do not become parties to your agreement; by witnessing your agreement, they are just saying that they saw you sign your name.

Marriage agreements and cohabitation agreements usually deal with financial issues
Typically, marriage agreements and cohabitation agreements talk about who will be responsible for managing and owning property and debts during the relationship, and about how those financial issues will be handled if the relationship breaks down. They sometimes also say whether spousal support will be paid in the event the relationship breaks down.

For example, an agreement might say that each spouse will keep whatever property they had before they started living together, even if they later break up. In addition, it might say that if the spouses separate, one spouse will have the right to stay in the family home (at least temporarily) and perhaps receive support from the other spouse for a period of time and a certain percentage of the family property. It may also say that each spouse will acquire an increasing share of the other spouse’s excluded property the longer the relationship lasts. There are many possible arrangements for how property, debt and spousal support will be dealt with and you should speak to a lawyer if you are thinking about having a marriage agreement or cohabitation agreement.

Marriage agreements and cohabitation agreements sometimes also talk about how children brought into the marriage will be cared for after separation. They usually don’t talk about how children born during the marriage will be handled, and they don’t talk about child support.

Does the agreement have to be fair?
If both spouses receive independent legal advice and the agreement is reasonably fair, it would most likely be enforced by a court if one spouse tried to ignore the agreement. However, contracts that are obviously unfair to either person, were unfairly entered into, or were made without full financial disclosure may be set aside or varied by the court, especially if one or both parties did not get independent legal advice about the meaning of the agreement.

What things will not be enforced?
With or without a written agreement, the law imposes certain obligations on married couples, which you cannot contract out of.  Also, some terms will never be enforced by a court, such as a contract about having sex, remaining childless, or to end the marriage after a certain period of time.

Agreements about children
Although you can make a marriage or cohabitation agreement which talks about the care and financial support of any children born during the relationship, the contract will not be binding in the event the relationship breaks down. 

When and why are marriage agreements and cohabitation agreements used?
Marriage agreements and cohabitation agreements are sometimes intended to govern how things will work during a relationship. More often they’re intended to govern how things will work out if the relationship ends in order to settle these issues now, in advance of separation, in the hope of avoiding future conflict and litigation. The issues easiest to resolve ahead of time usually involve the division of property, responsibility for debts and the payment of spousal support.

Marriage agreements and cohabitation agreements seem to be used more often in second relationships than in first, especially when there are children from a previous relationship, probably because a spouse who has gone through an unpleasant breakup would reasonably want to avoid going through that unpleasantness again.

Can you change or end the agreement?
You and your spouse can always change or cancel your agreement, providing of course that you both agree to the change. Marriage agreements and cohabitation agreements are changed by making a second written agreement, called an “addendum agreement” or an “amending agreement”, to change some parts of the first agreement or to cancel and replace the first agreement. Like the first agreement, you must sign the new agreement and your signatures must be witnessed. 

You should consult a lawyer
If you want a marriage agreement or cohabitation agreement, write down some general ideas and expectations with your spouse and either prepare a written agreement based on these notes or have a lawyer draft the agreement. An agreement made under pressure a day or two before a wedding may not be enforceable.

Whether you have a lawyer write the agreement or not, it is very important that you meet with a lawyer who is familiar with this area of the law for advice about how the agreement affects your rights and obligations before you sign it.

Your spouse must see a lawyer too
This may seem unnecessary when the two of you have an agreement. But having your own lawyers at this stage lessens the chance of either of you being able to say to a court at a later date, “I didn’t know what I was signing” or “I only signed it because I thought I had no choice”. A court can set aside a marriage agreement or cohabitation agreement because of unfair pressure. If you want a marriage agreement or a cohabitation agreement, you want to make sure it’s going to do the job, and it’s usually worthwhile to spend the extra time and money to do it properly.

Summary
If you’re considering a marriage agreement or a cohabitation agreement, discuss the idea with your spouse or future spouse, and then discuss it with a lawyer. Marriage agreement and cohabitation agreements usually deals with financial issues. If trouble comes and your spouse breaks the agreement, you can sue to enforce the agreement, just like any other contract. 

[updated March 2013]


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