Prenuptial Agreement, Marriage Agreement and Cohabitation Agreement: What is the Difference?

What are these Agreements?

Marriage agreements are made in anticipation of marriage (also known as pre-nups or prenuptial agreements) or after the parties are already married. Cohabitation agreements are made when people plan to live together or after the they have already started living together.

Under the Family Law Act in British Columbia, people who live together for two or more years are subject to the same family law rights and obligations as married people. Therefore, marriage/prenuptial agreements and cohabitation agreements are essentially the same, but their names differ simply to reflect the parties’ marital status or living arrangement.

These family law agreements usually delineate how assets and debts will be divided if the parties separate, and whether or how spousal support would be paid. These agreements can also deal with how the parties want to manage their relationship during the time they are together. If there are any stepchildren, these agreements can set out the obligations of stepparents as well. The complexity of these agreements depends on the parties’ circumstances and goals.

If people make a cohabitation agreement but later become married, to ensure the continued enforceability of the agreement, the parties can amend the agreement after marriage or include a term when drafting the cohabitation agreement to say that they intend for the agreement to continue operating even in the event of marriage.

Why Make an Agreement?

The Family Law Act in British Columbia sets out the default scheme of dealing with family law matters in the event of a relationship breakdown. The Family Law Act applies to people who are either married or have been living together for two or more years in a marriage-like relationship.

If couples do not want the default family law scheme to apply to them, they would benefit from making an agreement. Some reasons why people choose to have an agreement include: to protect any pre-relationship assets that they own, to protect future property that they may acquire, to protect business or real estate interests, and to specify which properties to keep separate and which to share. The couple may choose to outline spousal support obligations or waive them in the agreement as well.

These agreements are also helpful because they put the parties’ expectations in writing. Being clear on expectations and how to deal with family law matters going forward can alleviate a lot of stress and ambiguity in a relationship. If the relationship ever breaks down, the agreement is one certainty that the parties can hold onto in a time of uncertainty.

How We Can Help.

In making an agreement, the parties are deciding to what extent they want to opt out of the default family law scheme. This is why it is important to obtain legal advice particular to your situation to understand your rights and obligations under the law. We will advise you on what rights you may be gaining or giving up, and what obligations you are signing onto in entering into an agreement.  

The process of drafting an agreement can also bring up challenging or emotional discussions for the couple. Here at Connect Family Law, our lawyers are sensitive to the relationship dynamic that different couples have, and we strive to help you create an agreement that reflects your intentions and protects your best interests.