To Have or Not to Have

When couples get engaged and get married, they often hope that the relationship will withstand the test of time and circumstance. They often see their union as a romantic venture rather than the financial partnership that it also is. And having a conversation about prenuptial agreements is probably one of the last items most couples to do lists. Logically, it makes sense that you want to protect your own financial assets and to limit the financial liabilities that you’d be taking on. On the other hand, that conversation makes the engagement less romantic.

Prenuptial agreements are designed to disclose a couple’s financial assets and liabilities to each other. They can also limit the amount of spousal support the other might get when/if they decide to split up. The Family Law Act s. 85 states a list of what are excluded family property:

85 (1) The following is excluded from family property:

(a) property acquired by a spouse before the relationship between the spouses began;

(b) inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) a spouse’s beneficial interest in property held in a discretionary trust

(i)to which the spouse did not contribute, and

(ii) that is settled by a person other than the spouse;

(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

Prenuptial agreements can also set some ground rules in some of their future decision-making, such as who gets ownership of certain items over the course of the relationship and social media clauses, and define responsibilities in your marriage. In addition, it can reduce conflict among couples and provide clarity in how they deal with the financial aspects of the relationship. If you have children from previous relationships, they can be provided for in your prenuptial agreement.

However, there are certain items that cannot be included in a prenuptial agreement. Any provision pertaining to child support or child custody cannot be included in a prenuptial agreement. For those items, the courts have the final decision with the child’s best interests in mind. Any provisions that deal with personal preference, such as chastity or religion, cannot be included in a prenuptial agreement. If your significant other disputes the prenuptial agreement, its terms can be altered and overturned by the courts on the basis of being significantly unfairness.

If the topic of having a prenuptial agreement comes up between you and your significant other, it is important to not become emotionally invested but are rather be logical about it. Over the course of a relationship, people and circumstances change and so do their expectations in a relationship. You can try and prepare for any eventuality and make provisions for it but they can be rendered useless and archaic in the future. If you have any questions regarding prenuptial agreements, please don’t hesitate to contact us at 604.264.5550 for a free 1-hour initial consultation.

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Richter Trial Law