Marriage agreements, cohabitation agreements, and separation agreements may all be lumped in together under the label “domestic agreements.”
In British Columbia, issues arising from a domestic relationship can be governed by written agreement, statute law (e.g., Divorce Act, Family Law Act), or a combination of both.
Marriage Agreements – Agreements made before marriage (often referred to as “pre-nuptial” agreements) or during the marriage, but before separation, are typically called “marriage agreements.”
Cohabitation Agreements – If the parties do not intend to marry, the agreement is usually called a “cohabitation agreement.”
Separation Agreements – Whether parties are married, or living common-law, upon separation they may enter into an agreement to govern the end of their relationship. These agreements are typically called “separation agreements.”
People make domestic agreements at the beginning, during, or at the end of a relationship for many different reasons such as determining the following legal issues:
Domestic agreements made at the beginning of, or during, a relationship are most often concerned with settling issues that can arise at the end of the relationship, like avoiding property division rules that would otherwise apply under the B.C. Family Law Act (e.g., equal division of family property, regardless of whose name the property is in). The more complicated the finances of a person are, the more important this consideration becomes.
Although in British Columbia, domestic agreements are always “reviewable” by the courts under the Family Law Act, case law (Hartshorne v. Hartshorne, 2004 SCC 22) suggests that the fact that the parties made an agreement can, itself, be a strong factor for the courts to consider in such a court review. This means that when the parties have a domestic agreement, the starting point for a reviewing court in determining whether the agreement is fair is not the law under the Family Law Act, but the provisions of the agreement itself. This can provide a party with a domestic agreement a considerable advantage at the end of the day.
Domestic agreements are well worth the cost and are a prudent means of achieving some degree of certainty in domestic relationships when dealing with property division, potential support obligations, parenting and estate planning.