Script 162 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

Marriages don’t always last these days
In the past, brides and grooms traditionally promised to “love, honour and cherish” as part of a lifetime commitment. But these days, high divorce rates and a healthy skepticism now affect our notions of romance, and more precise statements about a couple’s obligations may be needed. You may be wondering what happens if your marriage doesn’t last “till death do you part,” and you might want to have some say now about what happens if your marriage ends.

You could consider a marriage contract
This script will tell you something about marriage contracts – what they are, what they can and can’t do, and the reasons for having or not having one. Note that this script only covers legally married persons; agreements between common-law partners (whether heterosexual or same sex partners) require special legal advice, although there are common elements.

What is a marriage contract?
A marriage contract is a legal agreement, very much like any other type of contract. It’s a written document between two people. It can be between two people who are already married, or two people who are planning to marry (called a “pre-nuptial agreement”) to take effect on the date of their marriage. A marriage contract identifies who you are and usually makes some statement about the purpose of the agreement. Then it sets out a series of promises that you each make to the other.

What are the legal requirements for a marriage contract?
Both of your signatures must be witnessed by at least one person. The agreement will then take effect on the day you get married if you make a pre-nuptial agreement before your marriage, but it will take effect immediately if signed after the marriage ceremony.

Marriage contracts often deal with financial issues
Typically, a contract specifies who will be responsible for managing and owning assets and debts while the marriage lasts, and then it sorts out each person’s rights and responsibilities if and when the marriage should break up.

For example, an agreement might say that each spouse keeps whatever assets they had before the marriage, even if they later break up. In addition, it may say that if they separate, one spouse will have the right to stay in the family home (at least temporarily) and perhaps receive support from the other spouse for a period of time and a certain percentage of the family assets.

Does the agreement have to be fair?
If both spouses receive independent legal advice and the agreement is reasonably “fair,” it would most likely be enforced by a court if one spouse tried to ignore the agreement. However, contracts that are blatantly unfair to either person may be set aside or varied by the court, especially if no independent legal advice was received.

What things will not be enforced?
With or without a written contract, the law imposes certain obligations on married couples, which you cannot contract out of. Also, a contract to remain childless, or to end the marriage after a certain period of time, wouldn’t be enforced in any court.

Other things are enforced only if they are reasonable
Although you can agree about the care, custody and support of your children, matters affecting the welfare of children (such as which parent a child should live with, or how much support should be paid to a child) can always be reviewed by the court. This shouldn’t stop you from writing down your mutual expectations about child care though, as clauses on child care may help the court see why certain decisions were made. 

When and why are marriage contracts used?
Marriage contracts seem to be used more often in second marriages than in first, especially when there are children. That may be because people are more realistic the second time around, and also because they often have accumulated more wealth than they had the first time and are more anxious to protect it.
The advantage of an agreement is the greater certainty it gives about a couple’s rights and obligations, particularly concerning property and separation.

Can you change or end the contract?
At a later date, you and your partner can agree, in writing, to change or end the contract. Like the contract itself, your signatures to any change must be witnessed. 

You should consult a lawyer
If you want a marriage contract, write down general ideas and expectations with your partner well in advance of the marriage date. Then have the document reviewed or drafted by a lawyer who is familiar with this area of the law. An agreement made under pressure a day or two before a wedding may not be enforceable.

Your spouse or future spouse must see their own lawyer too
This may seem unnecessary when the two of you agree. But having your own lawyers at this stage lessens the chances of either of you being able to say to a court at a later date, “I didn’t know what I was signing” or “I only signed it because I thought I had no choice.” A court can set aside a marriage contract because of unfair pressure. If you want a marriage contract, you want to make sure it’s going to do the job, so spend the extra time and money to do it properly.

Summary
If you’re considering a marriage contract, discuss the idea with your spouse or future spouse, and then discuss it with a lawyer. A marriage contract usually deals with financial issues. If trouble comes and your spouse breaks the agreement, you can sue, just like any other contract. The bonus is that a marriage contract may help the two of you respect each other’s rights so that you avoid disputes that lead to trouble.

[updated April 2009]

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