What To Consider When Making A Marriage Or Separation Agreement

February 2, 2014
Leisha Murphy

Under the Family Law Act, which came into force March 18, 2013, you and your partner/spouse may make an agreement dividing property and debt between you. The Agreement can be made in the event of a future separation (Marriage or Cohabitation Agreement) or after you have already separated (Separation Agreement). The Agreement should be in writing, signed by both people and witnessed by at least one other person who is over the age of 19 and not a family member of either person.

To strengthen your Agreement so a court is less likely to interfere with its terms, should one of you later wish to challenge it in court, consider the following:

1)      Before signing the Agreement can you answer “true” to the below statements:

• Both people disclosed their significant property and debts and any other relevant information to each other at the time the Agreement was made.

• Neither person took advantage of the other person’s ignorance, need or distress.

• Both people understood the nature and consequences of the Agreement.

• Neither person threatened the other or otherwise coerced them to sign the Agreement.

2)      After the Agreement is signed, can you answer “true” to the below statements:

The Agreement is not significantly unfair, considering:

• The length of time that has passed since the Agreement was made,

• The intention of both people, in making the Agreement, to achieve certainty,

• Whether both people conducted themselves in the relationship according to the Agreement (for example, if the Agreement contemplates that you will keep your property separate then you do in fact keep your assets (bank accounts, vehicles, real estate) in your own name.

To further strengthen the enforceability of an Agreement it is prudent for each person to receive independent legal advice from a lawyer. This helps ensure both people are entering the Agreement fully aware of their legal rights and obligations.

Considering entering into a Marriage, Cohabitation or Separation Agreement? Need advice on an existing Agreement? Contact us.

Leisha Murphy
Leisha Murphy
Partner (Vancouver)
Connect Family Law

Leisha has practised exclusively in the area of family law since being called to the British Columbia Bar in 2010. Before opening Connect Family Law in 2015, she practiced in the family law group of a leading British Columbia law firm.