You and your soon-to-be spouse are happy, in love, and think that you will remain married for the rest of your lives. When someone suggests to you that you should consider a prenuptial agreement – one that addresses how assets, debts, and support will be determined in the event of a future separation or divorce – your immediate reaction is that divorce will never happen to you.
A prenuptial agreement might feel completely unnecessary.
However, people can change over the course of a lifetime and once solid marital relationships can weaken. For this rational reason, you should carefully consider the benefits, peace of mind, and security that a prenuptial agreement can bring. Stated differently, having a prenuptial agreement in place is like buying an insurance policy.
You hope that you will never need it, but will be thankful that you have it in place when the need arises and the unthinkable occurs.
Once you make the decision to protect yourself by having a prenuptial agreement, you must make a second and equally important decision—to have a skilled and experienced lawyer draft it for you.
The talented prenuptial agreement lawyers at Spectrum Family Law are just such attorneys, and will draft an agreement that will hold up and survive review by a trial judge.
What are British Columbia Prenuptial Agreements?
Prenuptial Agreements are contracts that are signed by the parties prior to their marriage. Such agreements set out in advance how property, debt, and support will be determined in the event of a future separation or divorce. A prenuptial agreement lists the respective assets and debts that the parties are bringing into the marriage, and determines how these will be divided in a future divorce.
They also commonly address future spousal and child support issues once the parties are no longer together. In doing so, the parties set up clear guidelines regarding a potential separation that they promise to follow.
While prenuptial agreements have traditionally applied only to married couples, the 2013 British Columbia Family Act treats common law relationships similar to the way it treats marriages. Thus, couples who are considering moving in together, should think about a prenuptial or cohabitation agreement to protect their rights and assets in the event that their relationship ultimately collapses.
British Columbia Prenuptial Agreements Can be Unfair
British Columbia prenuptial agreements can be unfair in the sense that property is not evenly divided, and where one party is left with a greater share of the assets. However, they cannot be so grossly unfair that they would leave one party impoverished and without resources.
If a divorce trial judge determines that a prenuptial agreement is completely unfair to one party, the judge has the power and authority to cancel the agreement, with the likely result being that the parties’ property will be evenly divided.
Such a result underscores the absolute necessity of retaining a skilled and experienced prenuptial agreement attorney, like those at Spectrum Family Law, to draft an agreement that is enforceable and will survive a judicial review.
5 Things a British Columbia Prenuptial Agreements MUST Have
There are five elements that a prenuptial agreement must have to be considered valid and ultimately enforceable. Stated succinctly, they are: 1) full financial disclosure; 2) the absence of coercion or duress; 3) independent legal advice; 4) sufficient time for negotiations; and 5) compliance with the British Columbia Family Law Act and the Divorce Act.
EXCHANGE FULL FINANCIAL DISCLOSURES
First, the parties must exchange full financial disclosures in a prenuptial agreement. Such disclosures generally include a list of all current assets and debts, recent tax returns and projected streams of income. No financial information can be withheld from the prospective spouse.
NO SIGNS OF COERCION
Second , to be enforceable, a prenuptial agreement must not contain a hint of coercion or duress. The parties must freely and voluntarily enter into the agreement. If duress is found, a court is likely to set aside the agreement.
DO NOT DRAFT YOUR OWN PRENUPTIAL
Third, a prenuptial agreement should not be drafted by the parties themselves, as it is unlikely that either of them will have the necessary skill or knowledge to do so. Instead, one party should retain competent counsel to draft the agreement, with the other party retaining independent counsel to closely review it. In this way, both parties will be fully knowledgeable about the agreement and have the assurance that their respective rights are being protected by independent counsel.
SUFFICIENT TIME TO REVIEW THE PRENUPTIAL
Fourth, the agreement must be signed a sufficient period of time before the marriage, so that it would be reasonable to assume that each party had sufficient time to review and understand it. An agreement that is signed in the hours before a wedding ceremony will inevitably raise red flags.
BC FAMILY LAW ACT AND DIVORCE ACT
Finally, the agreement must be in full compliance with the British Columbia Family Law Act and the Divorce Act. You will need skilled attorneys to confirm that the agreement is in compliance with these statutes. The knowledgeable attorneys at Spectrum Family Law can give you this guarantee.
What are the Advantages of Having a Prenuptial Agreement in British Columbia
There are many advantages to having a prenuptial agreement. If the parties do eventually decide to divorce, the major issue of the division of property will have been settled in advance, thus potentially saving time and thousands of dollars in legal fees. There are other benefits, some of them immediate, focusing on the development of the marriage, with the balance covering issues that will arise at the end of the marriage.
The immediate benefits that will help the parties at the outset of the marriage are that the property and support issues that the agreement must address can lead to better communication between the parties and will help them plan for the future, factors that can strengthen the marriage.
The long term benefits are directed toward the parties’ decision to end their marriage and the resulting issues that will arise. A prenuptial agreement will almost certainly reduce these issues, as the agreement will define what constitutes marital property, a factor which will greatly reduce future legal fees. The agreement can also protect personal assets and family heirlooms from equitable division and can insure that such property will not be divided on a 50/50 basis.
It can protect one spouse from the pre-marital debts of the other spouse. Finally a prenuptial agreement can address future support issues and protect children from previous relationships, to the benefit of both parties.
Contact Our Prenuptial Agreement Lawyers Today
Having a binding prenuptial agreement in place can eliminate many end of marriage issues. The importance of having a properly drafted agreement cannot be overemphasized. The experienced and skilled prenuptial agreement lawyers at Spectrum Family Law are ready to serve and help by drafting an enforceable prenuptial agreement that will protect you.
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Alfonso is a lawyer of our Vancouver office who provides services in both English and Mandarin. Prior to joining our firm, he worked at a full-service law firm for over four years, where he helped clients with a wide variety of family law matters, from drafting prenuptial agreements to negotiating terms for and drafting separation agreements to representing clients for divorces.