Marriage can have significant implications for each person in the relationship, and many choose to obtain a marriage or spousal agreement prior to being wedded to protect their personal interests. There are many reasons why someone may want a marriage agreement.
Perhaps one party in the relationship owns a significant number of assets that they do not wish to form part of the marital assets. Or perhaps the asset is the family resident, but one party in the relationship had contributed significantly more to its purchase. In these cases, a marriage agreement can help prevent future problems by establishing a division of property prior to marriage.
However, marriage agreements must also be fair. This is governed by the Family Law Act, and states that agreements must consider factors such as the duration of the marriage, how long the spouses lived together, when property was acquired, whether one spouse received the property as inheritance or gift, whether each spouse will be economically self-sufficient after the split, among other circumstances. Generally, what the courts will do is apply the agreement with respect to each party’s circumstances after separation, and then assess the factors based on two questions:
When the marriage or spousal agreement was made, was the circumstance of how each party would be affected by the separation contemplated?
If so, were adequate arrangements made in response to the anticipated circumstances?
Fairness is an important issue in marriage and spousal agreements. The law recognizes that often one member of the household may be the financial breadwinner, while the other may earn little to no income, but be responsible for other duties such as household management and childrearing. If the marriage or spousal agreement is not fair, or no proper legal advice was provided, the courts can make a determination on how assets should be divided. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).