Noémie Gagnon-Bergeron- Published May 21, 2023
You are engaged, congratulations! Love is in the air and you couldn’t be more excited to begin your lives together as spouses. Or, maybe you’re not engaged quite yet, but you and your partner have been living together for two or more years. Now you might be thinking, do we really need a prenup? The short answer is yes, it’s probably a good idea. Read on to find out why.
WHAT IS A PRENUP?
A “prenup” is short for a prenuptial agreement, which is essentially a contract between you and your spouse that is signed before the actual day of your marriage. It sets out how you will divide up your family property, assets, and debts if you ever separate.
Great, but what if you never want to get married? Or what if you plan on getting married YEARS from now. What should you do then? In B.C., couples living together in a “marriage-like” relationship for two or more years are considered spouses already (stay-tuned for another blog post on exactly what this means, but for now just assume that you are in one if you’ve been living with your partner for two or more years). If you and your partner are in that situation, you can enter what is called a “cohabitation agreement”, which is essentially the same thing.
WHAT IF WE DON’T OWN MUCH?
If you separate without a prenuptial or cohabitation agreement, the default rule in B.C. is that both spouses get half of ALL family property and are both responsible for half of all of the family debt.
To be clear, family property in B.C. is any real or personal property that is owned by either spouse on the date of separation. There are exceptions to this rule, such as inheritance or property held in trust, but generally the default is a 50/50 split, regardless of income or who purchased the property. Same applies to family debt. Any financial obligation that is incurred by a spouse during the course of the relationship is equally divided between the spouses, regardless of who’s debt it is or what the debt is for. Even if you believe you have more or less the same value in assets going into the relationship, that might not be the case in a few years. Having an agreement now on how issues of disparity will be dealt with down the line will save you both tremendous head-ache in the event that you do separate and all of a sudden you no longer want a 50/50 split.
Creating an agreement could (arguably) be even more beneficial if you aren’t married but are cohabitating or in a “marriage-like” relationship. Most couples who begin living together aren’t aware that once that two-year mark comes up, their “spouse” (as they now are in the eyes of B.C. family law) is entitled to half of their property and assets, and that they are now responsible for half of their spouse’s debts. In fact, lots of couples aren’t even aware of what their partner’s debts and assets are. Creating a cohabitation agreement will bring to light what each partner is bringing into the relationship. This inevitably avoids any unpleasant surprises.
Now you might be thinking to yourself, “okay, I get why it’s important generally speaking, but my partner and I will never split up and we’re okay with sharing everything. Do we really need a prenup?” The answer is still yes. Why? Well first of all, think of getting a prenup or cohabitation agreement like getting car insurance. We don’t buy car insurance because we expect to get into a car crash. We buy car insurance because if we ever were to get into a severe car crash, the difference between having the insurance and not having the insurance could permanently change our financial situation for the rest of our lives. The same goes for agreements between couples. Getting a prenup or cohabitation agreement does not mean you believe your relationship will end before “death-do-you-part”. It simply means you are putting insurance in place in case something completely unexpected were to happen.
Second, agreements aren’t just useful at the end of a relationship. Agreements can include how you and your partner will divide up responsibilities that you incur during the course of the relationship. This doesn’t mean that you and your spouse will write down in the contract who is doing the dishes every night and who takes out the garbage. It means that you and your partner can address how living expenses will be divided up. For example, you may come to an agreement that one spouse handles the mortgage payments, whereas the other spouse handles the day-to-day expenses of life. Creating an agreement can help manage expectations by having some serious adult conversations with your partner. In short, an agreement can be useful and beneficial even if you never break up!
CAN WE WRITE IT UP OURSELVES?
Alright, so now you might be convinced that getting a prenup or cohabitation agreement would be a good idea, but to avoid dealing with expensive lawyers you looked it up online and found examples of people doing it themselves for free. So, do you really need a lawyer?
We get it, lawyers are expensive. In all honesty though, having a lawyer draw up your prenuptial or cohabitation agreement will likely save you A LOT of money in the event that you ever need to use it to divide up your property, assets, and debts. When we say “A LOT”, we really mean a lot. If a prenup or cohabitation agreement is not done correctly, the consequence is that it could just not take effect at all. Potential problems that could lead to this include:
- A finding that it was drawn up unfairly;
- Issues with the format of the agreement itself;
- Issues with the substance of the agreement because you and your partner forgot to disclose some information;
If there are issues with the agreement that result in it having no effect, then you are left in a situation where you basically don’t have one. Consequently, you’re in the situation that you wanted to avoid – having to fight over who pays whom how much, for how long, and who gets what. This is time consuming to say the least. The result is a messy break-up with a lot of lawyer fees. Not to mention that if you end up needing to go to trial to deal with these issues, spending days in court is not fun.
Another potential problem with drafting it yourselves is that the agreement could be considered to be drawn up fairly, but the actual end result is that the agreement is significantly more advantageous for one spouse compared to the other.
So, if you want to minimize legal fees and avoid potentially getting the short end of the stick, it’s best to seek help from a lawyer early on. This will ensure that the agreement is fair, that there are no stones left unturned, and that you aren’t left spending enormous amounts of money in legal fees to celebrate the end of a relationship.
WHEN SHOULD I REACH OUT TO A LAWYER?
The short answer is now. If you have been in a committed relationship for two years or more, or if you and your partner are engaged, it’s best to reach out sooner rather than later. If you’re thinking of waiting until you buy a house, have kids, etc., don’t. You can always update the agreement as you and your partner move through life together. Although the thought of bringing up this conversation with your partner might not seem romantic, the gesture of caring about how you and your partner move through life together in agreement is.
Our experienced family law lawyers at Portside Law Corporation would be happy to help you and your partner navigate that romantic conversation! Reach out to us by phone, 1604-545-6145 or email, office@portsidelaw.ca, today.
Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.