While many people feel like a snail without a shell after a divorce, the reality is Canadian family law dictates that family assets are divided equally between spouses, unless an equal division would be unfair to one spouse. As of 2013, with the coming into force of the “new” Family Law Act, both married and unmarried (“common law”) spouses are subject to these rules relating to property division.
Is there any way to avoid being shell-less (so to speak) after divorce or separation? One of the best ways is to be proactive about it, and enter a marriage or cohabitation agreement.
A marriage or cohabitation agreement, which spouses sign while they are still together, sets out both parties’ rights and obligations towards each other. These documents can cover everything from who gets to keep the TV, to where the children will live, to who gets to keep the Ford camper van, if the relationship breaks down.
If you are considering such an agreement, it’s important to remember that despite the intentions of you and your spouse at the time you sign the agreement, a court may review and change the agreement if you or your spouse someday has a problem with it. Although our courts are typically very deferential to any written agreement, if an agreement is (or has become) unfair to one of the parties, a judge will often be willing to evaluate the parties’ bargain, and possibly make an order that is different than what the parties originally agreed to.
To reduce the likelihood that a court will make such an order, it’s wise for spouses to review (and possibly update) their marriage or cohabitation agreement approximately every 5 years, or after a significant event (for example, having children, starting a new business, or receiving a large inheritance) occurs. Much like a will, agreements like these should be kept current. An agreement that is not current is not necessarily invalid, but it is much more vulnerable to judicial rewrites if one spouse becomes unhappy with its terms down the road.