You’ve probably heard of a “prenup” before, more formally known as a prenuptial agreement.
It’s okay if you haven’t, though. Most people have a general idea, but don’t know exactly what a prenuptial agreement can do for them – or their spouse. You might not know how to create one, or what items you should have in one.
While we can’t tell you specifically what you should include in your prenup in this blog (for that you’ll have to get in touch with one of our family lawyers), we can give you some of the basics.
Understanding Prenuptial Agreements in BC
A prenuptial agreement, also known as a marriage agreement or a domestic contract, is a legally binding document that outlines the division of assets and liabilities between spouses in the event of a divorce or separation. It allows couples to establish clear guidelines for the distribution of property, spousal support, and any other financial matters they deem important. In British Columbia, prenuptial agreements are governed by the Family Law Act.
A prenup can make a divorce or separation a lot smoother, and it can protect you from losing property, savings, and other assets in the event of a divorce. The only catch is that a prenuptial agreement can’t be made during a separation. They’re often created before a marriage begins (hence pre-nuptial), but they can also be made during the course of a marriage, which is why they’re also called marriage agreements.
Typical Items in a Prenuptial Agreement
There are a lot of common items in marriage agreements, but it’s important to remember that this list doesn’t apply to everyone or all marriage agreements.
- Financial Matters: Prenups often address financial issues, including the division of assets and debts acquired before and during the marriage. This can include outlining how property and financial accounts will be divided in the event of divorce or separation.
- Alimony/Spousal Support: If you wish to establish specific terms regarding alimony or spousal support, such as the amount, duration, or conditions for receiving or waiving it, you can include these provisions in your prenup.
- Inheritance and Family Assets: If you have family heirlooms, inheritances, or assets that you want to protect and keep within your own family, you can include provisions in the prenup specifying that these assets remain separate and not subject to division in the event of divorce.
- Business Ownership: If you own a business or anticipate starting one in the future, a prenup can address how the business will be treated in case of divorce, including whether it will be considered separate property or subject to division.
- Debt Allocation: You can outline how existing and future debts, such as student loans or credit card debt, will be allocated between you and your spouse in the event of divorce.
- Estate Planning: Some prenups may include provisions related to estate planning, such as establishing the rights and obligations of each spouse regarding wills, trusts, and other estate matters.
- Dispute Resolution: Some couples include a provision that outlines how any disputes regarding the interpretation or enforcement of the prenup will be resolved, whether through mediation, arbitration, or another agreed-upon method.
And just because it isn’t listed above, doesn’t mean you can’t include it in your marriage agreement. If you have specific needs for your prenuptial, you contact an experienced family lawyer.
How to get a Marriage Agreement
To obtain a marriage agreement or prenuptial agreement, you’ll need to follow these general steps:
- Discuss with your partner: Start by having an open and honest conversation with your future spouse about the desire to create a prenuptial agreement. It’s important to approach this discussion with sensitivity and respect, emphasizing that it is a way to protect both parties and establish clear expectations.
- Hire a family law attorney: Each party should seek independent legal representation to ensure their interests are adequately represented. Find an experienced family law attorney who specializes in prenuptial agreements and has a good understanding of the laws in your jurisdiction.
- Provide full financial disclosure: Both parties will need to provide complete and accurate financial information, including assets, debts, income, and expenses. Full disclosure is essential to ensure that the prenuptial agreement is fair and valid.
- Identify your priorities: Discuss with your attorney and your partner the key issues you want to address in the prenup, such as asset division, spousal support, or protection of separate property. Consider your individual circumstances, goals, and concerns.
- Negotiate and draft the agreement: Work with your attorney to negotiate the terms of the prenuptial agreement. Your attorney will draft the document based on your discussions and ensure that it complies with the applicable laws. Both parties should have an opportunity to review and provide input on the agreement.
- Review with independent legal advice: Each party should review the drafted prenuptial agreement carefully. It is crucial to seek independent legal advice from your respective attorneys to ensure that your rights and interests are protected and that you fully understand the implications of the agreement.
- Sign the agreement: Once both parties are satisfied with the terms, they can arrange a meeting to sign the prenuptial agreement. It is typically recommended to sign the agreement well in advance of the wedding to avoid any claims of coercion or lack of time for review.
- Keep the agreement secure: After signing, keep the original prenuptial agreement in a safe place, such as with your attorney or in a secure personal location. Make sure both parties have copies for their records.
The Dhanu Dhaliwal Law Group specializes in family law matters, including prenuptial agreements, divorce, child custody, and spousal support. By entrusting your family law matters to the Dhanu Dhaliwal Law Group, you can feel confident in receiving the support and guidance required to protect your rights and secure your future.
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