Do Family Law Agreements Work?

In British Columbia, family law agreements will generally be upheld by the courts if they meet the requirements spelled out in the Family Law Act, and are generally fair to each of the parties to the agreement.

What is a Family Law Agreement?

A family law agreement may take many forms, depending on whether the parties to the agreement are planning to live together in a spousal-like relationship (a cohabitation agreement), are planning to be married (a “prenuptial agreement” or “prenup”) or are already married at the time that the agreement is made (a “marriage agreement”). Regardless of the circumstances, such an agreement it used to define the parties’ plans regarding their individual and joint finances, while the parties are living and the relationship is ongoing, if one of the parties dies during the course of the relationship, or in the event that the relationship breaks down in the future.

Typically, a family law agreement describes how assets and liabilities will be managed during the relationship, and how they will be managed if the relationship ends because of a separation.

A family law agreement should also set out the financial arrangements that will apply if one of the spouses dies during the relationship; this can be particularly important in relationships that develop later in life, when a spouse has children from a previous relationship to whom he or she would like to leave his or her estate while also providing for a surviving spouse during that spouse’s lifetime – for instance, by allowing the surviving spouse to remain in the home for the duration of his or her life.

In addition to dealing with assets and liabilities, family law agreements often outline the details of any other financial arrangements between the parties, such as whether one party will pay the other spousal support if the relationship breaks down.

Is my family law agreement worth the paper it is written on?

In British Columbia, a family law agreement is presumed to be valid unless the Court finds otherwise. The yardstick used for determining an agreement’s validity is generally measured in terms of “fairness”. Of course what is “fair” will vary depending on the circumstances. For example, if a marriage agreement says that one of the spouses will receive nothing upon divorce and the marriage only lasts for one year and the parties do not have any children, the Court might well consider the agreement to be fair. On the other hand, if the marriage lasts 20 years, the parties have had children, and one of the parties stayed at home as the primary caregiver and homemaker, the Court is unlikely to consider the agreement to be fair.

Context, Context, Context!

In other words, what is “fair” for one family may not be fair for another, and so when considering whether a family agreement is fair, the court will weigh a number of factors that are specific to your particular family, including the length of the relationship, the ages, abilities and needs of children and of each spouse, and the date and manner in which assets and liabilities were acquired.

The court will also consider whether the parties –

  • disclosed all of their assets, liabilities and income while negotiating the agreement
  • entered into the agreement freely and voluntarily, and without pressure from the other party
  • obtained independent legal advice before signing the agreement
  • fully understood the implications of signing the agreement, and how the terms of the agreement alter their rights and obligations under the law

Should I enter into a family law agreement?

As with most things in life, there is no simple answer. The starting point is to recognize that a family law agreement is a contract that defines your rights and obligations, rather than having these rights and obligations imposed by statute. Before entering into an agreement, talk to a family lawyer to find out what your rights and obligations are under the Family Law Act, the Divorce Act, and any other relevant laws that would apply to you in the Province of British Columbia, and to find out whether it would be beneficial to you to structure your affairs in a different way, using a family law agreement.

We are always here to help, so contact us if you would like to discuss what is right for you and your family.