It’s true that a major part of our work at Connect involves helping people who are at the end of a relationship. However, there’s more to family law than separation and divorce. A number of our clients come to see us when they are in the early stages of a relationship for advice about how to protect their property and income in the event that someday, that relationship breaks down. These issues can be of particular interest to older individuals who are entering into a second marriage (or marriage-like relationship) and have accumulated wealth which they want to preserve.
On May 24 I'll be speaking at Collaborative Divorce Vancouver’s “grey divorce” conference, which will focus on the unique needs and challenges of individuals who are divorcing (and possibly re-partnering!) in their later years. While the conference is intended for professionals working with these mature clients, much of my presentation on Re-Partnering and Marriage Agreements will be of interest to anyone entering or involved in a committed relationship.
Here are some of the highlights:
1. You don’t have to be married to be a spouse. Under BC’s Family Law Act (FLA), a spouse includes a person who has lived with another person in a marriage-like relationship for a continuous period of at least 2 years.
2. You don’t have to live together to be in a marriage-like relationship. So what does “marriage-like” mean? You can be considered to be living in a marriage-like relationship even if you and your partner are living in two separate homes. To determine whether your relationship is “marriage-like”, a court would look at whether the two of you have co-mingled your finances / become dependent on one another; whether you discussed a serious relationship or marriage; and how you hold yourself out to your family, friends and community. In other words, even if you are living separately, if you are found to be in a marriage-like relationship for two years, you could be considered spouses under the FLA. On the other hand, living together does not necessarily result in a marriage-like relationship. If you live together but are maintaining your financial and emotional independence, you may not be considered spouses under the FLA.
3. There are ways to protect your property and income. Regardless of whether you are living with your partner full-time, if you are in a committed relationship, the best way to protect your property and income for the future is to enter into a cohabitation/marriage agreement – commonly referred to as a pre-nup (or pre-nuptial agreement). (Note: A cohabitation agreement is made between non-married partners, and a marriage agreement is for a couple who are married.)
4. Some of the most common issues dealt with in a cohabitation/marriage agreement are property and debt division upon relationship breakdown or one spouse’s death, spousal support, and step-parent’s obligations to his/her stepchildren.
5. Cohabitation and marriage agreements do not need to be written. A court can uphold an oral agreement, so make sure that you don’t make agreements about property division that you may not wish to honour in future.
6. Our court has the power to set aside agreements. They can exercise this power if
a. an agreement was procedurally unfair at the time it was made (for example, one spouse did not disclose significant property or debt to the other spouse ,or one spouse did not understand the consequences of the agreement or was coerced into signing it), or
b. the agreement is found to be significantly unfair to one spouse considering the length of time that has passed since the relationship was made, the intention of the spouses to achieve certainty, and the degree to which the spouses relied on its terms.
7. Make sure you review the agreement regularly. There should also be proof that you’ve both reviewed it – one way to do this is to include a review schedule at the end of the agreement.
8. Plan ahead if there is a significant disparity in income/wealth between you and your partner. Make sure the agreement includes some mechanism to enable the spouse with fewer assets / the lower income to be financially independent upon separation.
9. Maintain financial independence. Wherever possible, both partners should continue to work during the relationship and / or be able to financially support themselves through retirement.