How a Marriage Agreement can Impact a BC Divorce

BC Cohabitation & Marriage Agreements

No couple plans for divorce from the first day of their marriage, but the statistics don’t lie: Canada’s divorce rate may be at its lowest in 50 years but around one third of marriages still end in divorce.

The separation and divorce process is often time-consuming, expensive, and emotionally draining as couples plan their lives separately from each other. This can be complicated further if they have children together.

Being able to turn to a legally binding marriage agreement (also known as a prenuptial agreement)as guidance for what happens next can be a comfort for some divorcing spouses in British Columbia—and can prevent disputes and litigation.

But how else can a marriage agreement impact divorce proceedings?

What is the divorce process in BC?

The standard divorce process in B.C. is relatively straightforward. Matters are often complicated by the emotions involved, unrealistic expectations from spouses, and a sense of competition.

The standard court processes involve the following steps:

1. One spouse files a divorce petition with the BC Supreme Court (a Notice of Family Claim form).
2. The other spouse is served divorce papers and files a response.
3. If there is no response after 30 days, the divorce proceeds as “uncontested”.
4. The couple settles key aspects like child custody, division of property, spousal support, and child support through collaboration between lawyers or attending mediation or arbitration.
5. If the couple cannot reach an agreement, the matter will go to trial with a judge deciding on the key issues.

What does a marriage agreement cover in BC?

A prenuptial agreement is a marriage agreement between two spouses-to-be. It is made before the marriage officially begins and generally outlines what happens to assets and finances from the marriage if the couple separates at any point in the future.

Typically, agreements detail what happens to the following types of assets during a divorce:

• Shared real estate
• Shared bank accounts and savings
• Shared investments
• A shared business
• Pension contributions
• The increase in the value of any assets that were brought into the marriage

The agreement should outline what is considered “family property” and what is “separate” property, e.g., property owned before the marriage, any gifts or inheritance intended for one spouse, and the proceeds from personal injury lawsuits are usually considered “separate” property in B.C. The marriage agreement may also detail the responsibilities concerning any debts in the marriage and spousal support matters. Some prenups may also address child custody and child support but these matters must abide by the appropriate laws and follow the “best interests of the child” standard or the B.C. courts will intervene to protect the well-being of the child. For this reason, most prenups exclude such details.

Marriage agreements can be entered into at any point throughout the relationship.

Is your BC marriage agreement legally enforceable?

For a marriage agreement to be legally valid and enforceable by the British Columbia courts:

• Each party must sign separately in front of different lawyers.
• Each party must acknowledge that:
  • The signing spouse is aware of the prenuptial agreement’s nature and effect.
  • The signing spouse is aware of potential future claims to property under the Family Law Act and/or Divorce Act.
  • The signing spouse intends to give those claims up in favour of the agreement’s terms.
  • The spouse is signing the agreement “freely and voluntarily without any compulsion” from the other party.

A suitably qualified family lawyer should generally draft marriage agreements and ensure they are legally valid. Do not be tempted to use templates, as their validity may be challenged in court, adding unnecessary time and stress to the divorce process.

How Cohabitation Agreements Can Impact Divorce Proceedings in British Columbia

In British Columbia, a cohabitation agreement (also known as a marriage or prenuptial agreement) can significantly influence the outcome of a divorce or separation. These legally binding contracts allow couples to clarify how financial and legal matters will be handled if the relationship ends—offering clarity, reducing conflict, and streamlining the divorce process.

Property Division

A cohabitation agreement can outline how property, including real estate, bank accounts, pensions, and business interests, will be divided. It can also address how increases in the value of pre-owned assets will be treated. Without such an agreement, BC’s Family Law Act generally requires an equal division of family property upon separation.

Spousal Support

The agreement may include terms related to spousal support—such as whether support will be paid, how much, and for how long. While the courts retain discretion to review fairness, a clearly worded agreement can limit costly disputes over support obligations.

Child Support

Although cohabitation agreements may outline expectations for child support, BC law prioritizes the “best interests of the child.” This means courts will assess support based on the child’s needs and the parents’ financial situations, regardless of what the agreement says.

Enforceability

For a cohabitation agreement to be enforceable, it must meet certain conditions:

• Both parties must enter into the agreement voluntarily.
• There must be full financial disclosure.
• The agreement must be fair at the time of signing and at the time of enforcement.

Courts may set aside an agreement if it was signed under duress, contains significant imbalances, or fails to meet legal standards.

Benefits of a Cohabitation Agreement

• Reduces conflict by pre-establishing key financial terms.
• Streamlines the divorce process by minimizing court involvement.
• Provides certainty to both parties regarding asset division and support obligations.

Legal Considerations

Before signing, each party should obtain independent legal advice to ensure they understand their rights and obligations. Cohabitation agreements should be reviewed and updated regularly to reflect major life changes, such as the birth of a child or significant changes in income or assets.

A well-crafted cohabitation agreement can serve as a powerful tool for couples in BC, protecting financial interests and simplifying divorce. However, to be effective and enforceable, these agreements must be fair, transparent, and legally sound.

How can a marriage agreement help in a BC divorce?

A marriage agreement can simplify and speed up the process of settling the important matters that often hold up divorces.

Divorce cases can become fraught with disputes over property division and financial support, as spouses navigate troubled waters and plan their futures. Divorces that start amicably can turn sour.

If the most contentious matters are already outlined in a legally enforceable document, the divorce process can proceed without unnecessary delays or interruptions.

A married couple with children may still be subject to court decisions concerning the children’s safety and well-being but other matters can largely be addressed in the marriage agreement if it complies with B.C. and federal law.

This can reduce not only the stress and time involved in the divorce but also the associated legal fees.

What are the disadvantages of marriage agreements in British Columbia divorces?

If both parties sign a marriage agreement voluntarily and with full understanding of the consequences, there are few disadvantages.

Major issues usually only occur when one spouse requests that the court reject the agreement. This will necessitate an investigation into whether the agreement is legally enforceable, including the circumstances of how it was drafted and signed. If due process was not followed, the agreement may be invalidated by the court.

An invalid marriage agreement can delay the divorce process, having the reverse effect of what was intended when the spouses signed it.

Property division and spousal support matters may then need to be settled by collaboration between lawyers, mediation or arbitration. If no agreement is possible, the matter may even go to trial.

Key requirements for enforceable marriage agreements in BC

To recap, as you discuss your prenuptial agreement with your spouse, bear in mind that valid marriage agreements must have the following features to be legally enforceable:

• Full financial disclosure between the two spouses, with no hidden assets.
• No duress or pressure on either party who signs the agreement.
• Independent legal advice to ensure that both spouses understand their rights and the legal consequences of signing the agreement.
• Compliance with the provisions of both the BC Family Law Act and the federal Divorce Act

If you’re considering a prenuptial agreement and need legal assistance in the Langley area of British Columbia, DSG Family Law offers a free and confidential initial consultation to assess your situation and outline your legal options. Speak with our family lawyers today.