When you are about to get married, conversations about prenuptial agreements are not the most romantic or the most comfortable to have—but they are necessary, given what you risk should your marriage fail. Knowing and understanding the purpose and nature of prenuptial agreements can make these conversations easier. The media already furnishes us with instances of how celebrities use these agreements to protect their assets, but there is so much more to prenuptial agreements. Here are some important things you should know about these essential documents:
Prenuptial Agreements Do More than Protect Premarital Assets
Prenuptial agreements—or prenups—are legal agreements that soon-to-be-married couples make to protect their premarital assets should their marriage fail. The documents vary from couple to couple and, in addition to an outline of how the premarital property will be divided, can also include information on:
- How inheritance will be handled
- How pension will be divided
- How assets acquired during the marriage will be treated
- Provisions about spousal support and duration
- Roles and responsibilities of spouses during the marriage
Prenuptial Agreements Cannot Include Child Support or Custody Issues
Couples about to marry can include a variety of issues in prenuptial agreements, but there are a few issues that they cannot include. Issues regarding child support, custody, and childrearing cannot be included. Judges make final custody and support decisions based on the best interests of the child and the Federal Child Support Guidelines. The rationale is that it is impossible to predetermine what the needs of any child born into the marriage will be or what set of circumstances will suit their best interests should a marriage break down. Furthermore, there is no way to predict how a family’s circumstances may change.
Marriage Contracts and Cohabitation Agreements Are the Same as Prenuptial Agreements
The term marriage contract is often used interchangeably with the term prenuptial agreement. However, it can also refer to a postnuptial agreement. Postnuptial agreements are contracts signed after a couple has been married. Cohabitation agreements are the same type of document as marriage contracts but are signed between common-law couples. British Columbia’s Family Law Act grants the same rights as married spouses to couples in a common-law union for two or more years, as well as those who have cohabitated for less than two years but have a child together.
The Supreme Court Can Set Aside a Prenuptial Agreement
Section 93(3) of the Family Law Act empowers the Supreme Court to set aside all or part of a prenuptial agreement if two or more of the following situations exist:
- Either party did not disclose significant debts, assets, or liabilities at the time the agreement was negotiated
- The agreement was signed under duress
- A party failed to understand the nature and consequences of the agreement
- Aspects of the agreement are unconscionable
Parties should employ independent lawyers when preparing prenuptial agreements so that the documents are fair and can withstand the court’s scrutiny.
Prenuptial Agreements and the Matrimonial Home
Rights to a property included in a prenup are superseded by rights provided by the Family Law Act once that property is used as a matrimonial home. A matrimonial home is any residence that the family occupies, and this may be one or multiple homes. The Family Law Act grants each divorcing spouse the right to share equally in the home regardless of whose name is on the title, and that includes its value, mortgage, and debt.
Anyone With Property Can Have a Prenuptial Agreement
You don’t have to be wealthy to have a prenup. With the help of a prenuptial agreement lawyer in Surrey, anyone with property who is about to enter into marriage can benefit from the protection and other values that a prenuptial agreement provides. Prenups are especially recommended for individuals entering their second marriage or for those who have children from a previous relationship.
Get Advice from an Experienced Family Lawyer in Surrey
Prenuptial agreements must be properly prepared for them to be effective and valid. If you want a prenup or have been asked to sign one and are searching for a family lawyer in Surrey, contact us at ALG Lawyers. Allow our experienced team to help you draft a legally sound document that fulfills your specific needs. Reach us by phone at 604-337-6254 or via our online contact form for a consultation.
