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What Is A Marriage Agreement?

Marriage Agreement


What is a marriage agreement? Why might I need one? This is a question our family lawyers get asked very often.

Most people know that they should get a marriage agreement. Some people choose not to because they have a hard time speaking about it with their spouse. If you plan to have children and if you have any property or debts, it is very important that you get a marriage agreement. Spending a few thousand today might save you tens or even hundreds of thousands of dollars in the future.

What goes into a marriage agreement can be as simple or as complex as the client chooses. Most commonly it includes a list of assets and debts both spouses are bringing into the marriage.

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Marriage Agreement- Does It Ruin the Romance?

Most couples start thinking about getting a marriage agreement after one spouse proposes to the other and the proposal is accepted. The date of the wedding is set and the wedding is being planned. At the same time, the spouses know that financial planning is as important legal preparation. The challenge is that this is a very romantic time in the relationship and neither party wants to discuss the possibility of divorce. Unfortunately, the divorce rate is currently approaching 50%. Very few people that get married think they will be part of the 50% that gets divorced.

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Spouses need to understand that planning is important even if they don’t believe that they will ever get divorced. The marriage agreement sets out what will happen to assets and debts if a divorce occurs. It is also a good idea to include terms regarding spousal support, child support, and a child custody access plan. It is important to note that family judges do not have to accept the marriage agreement terms regarding child custody. Family judges almost always make decisions based on what is best for the children, not the parents.

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Marriage Agreement

How Our Family Law Attorneys Can Help You

  • planning when entering into a marriage
  • getting information on spousal support
  • prenuptial agreement
  • financial disclosure requirements
  • family legal issues
  • separation agreements

Be Honest About Your Assets

The main advantage of the marriage agreement is that you get to decide with your spouse what will happen to your assets, money, and children versus a third party deciding. If you do not have a marriage agreement and you go to court or arbitration, either the judge or the arbitrator will make the decision for you. It can upset people greatly when it comes to decisions regarding their assets and children be in the hands of someone else.

Read more: Protecting Property In Common Law

While drafting the agreement, it is important to be honest about your assets and debts. If in the future, your spouse can prove that you lied or hid assets then the marriage agreement can be deemed void by a judge. This defeats the purpose of what you were trying to do when protecting your assets with the agreement.

When Should You Create The Marriage Agreement?

It is also important for you to sign the agreement long before the wedding occurs. If you sign a few days before the wedding, a spouse can later claim they only signed the agreement because they were under pressure due to the wedding date. If you are unable to sign a marriage agreement before the wedding you can always do a postnuptial agreement. There is no legal difference between a pre or post marriage agreement.

Just an FYI, 6 weeks is really not long enough lead time to do a marriage contract. To do it right both sides need to disclose financials, an agreement has to be drafted, possible negotiations, and then the other side has to get ILA. And you do not want the appearance of pressure put on one side to sign. I’ve seen too many agreements fail afterward (when they come for separation) on the basis of a hasty poorly written marriage contract. 3 months would be a minimum and truthfully 6 months-1 year is ideal.

Independent Legal Advice for Marriage Agreement

It is also important for both parties to get independent legal advice from separate family lawyers. Often one of the spouses will hire a family lawyer to create the separation agreement. The lawyer will then send the agreement to the other spouse for review. That spouse should then take the agreement to another family lawyer to receive independent legal advice. This is important so that both parties understand the agreement. Also, both spouses will have a chance to speak to a lawyer about their own personal concerns. I.L.A makes the marriage agreement much stronger as neither party can claim that the family lawyer who drafted the agreement was representing both spouse’s interests at the same time.

The marriage agreement must be fair and take both parties’ interests into consideration. If you decide to include information about children, then the agreement must be in the best interest of the children. This is a crucial step so that a judge will uphold the terms of the marriage agreement in case of further separation.

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What Is A Prenuptial Agreement?

A question our lawyers often get asked is, “what is the difference between marriage, postnuptial, and separation agreement?”. A marriage agreement happens before you get married and there’s no expectation of divorce. On the other hand, a postnuptial agreement happens if you are already married and want to do something like an insurance policy, and you are not actually going through separation or divorce. A separation agreement happens during a breakup or divorce. It ends the relationship.

A prenuptial agreement is an American term. In Canada, we call it a marriage agreement.

How many years does a marriage agreement last? 

Much like in any other contract, a prenuptial agreement lifespan depends upon the terms stated in the contract. You and your partner might agree that the agreement only remains operative during the first 10  years of your marriage. Another option is to include terms that dictate that your separate property becomes a joint property after a specified period of time.

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Do I need a family lawyer?

It will depend on your situation. The best thing for you to do is to get a free consultation with a lawyer. You can then learn about the process and the costs.

Does legal aid help with custody cases?

Legal aid does cover family law cases if you are low income. Keep in mind that many clients on legal aid do not get the same attention as regular clients. Many legal aid lawyers have hundreds of clients at the same time!

Is family law provincial or federal?

It’s actually both. That is what makes it so confusing. Every province has their own provincial laws. But the Divorce Act also applies (and is federal.) You have to learn at least two Acts for family law.

What questions should I ask family lawyer?

It’s better to tell the lawyer about your case and answer the lawyers questions. Let the lawyer determine what is important in your case. They know what the courts will want to see.

At what age can a child decide where they want to live?

Each province has their own laws. There can be other complications as well if the child has a handicap. Common ages are 18 or 19 years old.

What are my legal rights in a divorce?

You have a lot. There is a provincial Act and a federal Act that determines your rights and obligations You should definately speak to a lawyer about this question.