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Prenuptial and Cohabitation Agreements

The redesign of family law that occurred with the British Columbia Family Law Act recognized the changing nature of marriage and marriage-like relationships. Many people are marrying later in life and bring significant property (and in some cases debt) with them into the relationship. Many people never marry, instead electing to remain unmarried yet cohabiting in lengthy marriage-like relationships.

Nanaimo, BC, Family Law Lawyer Serving Vancouver Island

Nanaimo family law lawyer Sabrina Yeudall is well versed in the provisions of the Family Law Act. She helps individuals and couples who are living together and/or intending to marry to understand how the act affects their relationships and finances. She will help you craft a prenuptial or cohabitation agreement that meets your needs, or will review such an agreement to advise you about whether it is in your best interests. Learn more below about how the Family Law Act may apply to you, or contact Candid Legal today for a consultation regarding your specific concerns.

The British Columbia Family Law Act Definition of "Family" Property and "Excluded" Property

The Family Law Act, unlike the previous law, applies the family property regime it creates to both married and unmarried spouses. If you reside in a marriage-like relationship for a period of two years or longer, and have no agreement to the contrary, virtually all of property you acquire from the date cohabitation began may qualify as "family" property and be subject to equal division should the relationship end. This includes the increase in value of any property you brought into the relationship. If the value of this property is not documented when the relationship begins, it is vulnerable to inclusion in its entirety as family property, as the burden of proof to establish specific property as "excluded" is on the person who wants it to be excluded.

Property that qualifies as "excluded" property is not subject to division. Excluded property includes:

  • property acquired before the relationship began;
  • inheritances;
  • gifts from a third party;
  • certain legal settlements and insurance payouts;
  • certain trusts; and
  • property derived from any of these excluded properties.

Key, however, is that it is the party who wants the property excluded who bears the burden of proving that the property is excluded property. This can be difficult when many years have elapsed and values were not clearly assessed at the time the relationship began. Problems can also arise when an inheritance that otherwise would be excluded property has been put in the name of both spouses, used to finance the family home, or transferred in some way from one spouse to the other. Decisions that seem unimportant during a relationship can have big impacts on how property is divided when the relationship ends, so it is important to seek legal advice when dealing with property in any manner.

Do You Need a Prenuptial or Cohabitation Agreement?

The process of completing a prenuptial or cohabitation agreement can protect you against future disputes as to the value of the property you or the other party brought into the relationship.

It also provides an opportunity for the parties to clarify their expectations, often leading to healthier relationships. For example, the process of drafting an agreement provides the parties with an opportunity to consider whether, in the event their relationship breaks down, they want the default property division rules to apply, or if they wish to exclude any increase in value of previously held property from division or make some other arrangement. For some separating parties, such an election at the start of the relationship prevents the sale of a previously owned home at the end of the relationship, as there is no need to raise capital to make an equalization payment to the other party for the increased value of the home.

An agreement can also clarify expectations about spousal support in the event the relationship ends at some point in the future. As this is often one of the most contentious issues in a divorce or separation, an agreement can make the difference between a simple negotiation and a long court battle should the relationship end.

Contact an Experienced Nanaimo Lawyer About Your Prenuptial or Cohabitation Agreement

An experienced family law lawyer can help you determine whether you need a prenuptial or cohabitation agreement and draft the right agreement for your relationship. We welcome you to contact Candid Legal for more information. Call (250) 585-1595,  email , or fill out our online contact form. Based in Nanaimo, we work with couples throughout Vancouver Island, British Columbia.

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