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.

Marriages don’t always last these days
About one in every two marriages will end in a divorce. Although you love the person you are marrying and probably expect the marriage to be permanent, it’s sometimes prudent to make plans how things will unfold in the event your marriage comes to an end.

You could consider a marriage agreement
This script will tell you about marriage agreements – 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 legally married persons; agreements between common-law partners require special legal advice.

What is a marriage agreement?
A marriage agreement is a legal contact, just like any other type of contract such as the contract you might have with a landlord or a business partner. It’s a written document that summarizes each person’s obligations to the other.

Marriage agreements can be between spouses who are already married or people who are planning to marry with the intention that it will take effect on the date of their marriage. A marriage agreement identifies who each of you are and usually makes some statement about the purpose of the agreement. Then it sets out a series of promises that you each make to the other.

What are the legal requirements for a marriage agreement?
Both of your signatures must be witnessed by at least one person. The agreement will then take effect on the day you get married if you’re signing it before your marriage, and will take effect immediately if you’re signing it after the marriage ceremony. The witnesses do not become parties to your agreement; by witnessing your agreement, they are just saying that they saw you sign your name to the agreement.

Marriage agreement often deal with financial issues
Typically, a marriage agreement talks about who will be responsible for managing and owning assets and debts during the marriage, and about how those financial issues will be handled if the marriage breaks up. Marriage agreements sometimes also say whether spousal support will be paid.

For example, an agreement might say that each spouse will keep whatever assets they had before the marriage, even if they later break up. In addition, it may say that if they 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 assets. It may also say that each spouse will acquire an increasing share of the other spouse’s property the longer the marriage lasts. There are many possible arrangements for how property and spousal support will be dealt with and you should speak to a lawyer if you are thinking about having a marriage agreement.

Marriage 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 usually 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 sex, or to remain childless, or to end the marriage after a certain period of time.

Agreements about children
Although you can make a marriage agreement which talks about the care and control and financial support of any children born during the marriage, issues about children can always be reviewed by the court, usually with very little attention being paid to an agreement signed around the date of marriage The court is mostly concerned with the children’s present needs and the arrangements that will best suit those needs.

The court is more likely to follow agreements which deal with children brought into the marriage from a spouse’s previous relationship. In a case like that, there is another parent whose rights and obligations must be taken into account, and the court often gives priority to the interests of biological parents over the interests of step-parents. 

When and why are marriage agreements used?
Marriage agreements are sometimes intended to govern how things will work during a marriage. More often they’re intended to govern how things will work out if the marriage ends, 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 assets, responsibility for debts and the payment of spousal support.

Marriage agreements seem to be used more often in second marriages than in first, especially when there are children from a previous marriage, 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 marriage agreement, providing of course that you both agree to the change. Marriage agreements are changed by making a second written agreement, called an “addendum agreement” or an “amending agreement”, to change or cancel 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, write down some general ideas and expectations with your spouse well in advance of the marriage date, 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 or future spouse must see their own 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 contract because of unfair pressure. If you want a marriage contract, 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, discuss the idea with your spouse or future spouse, and then discuss it with a lawyer. A marriage agreement 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 December 2010]

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