Why Consider a Prenuptial (or Cohabitation) Agreement?
Imagine this: You’re about to get married for the second time. You already own a home and some investments. You’re happy, but want to make sure your assets are protected—just in case. Without an agreement, years later, a messy divorce could cost you thousands in legal fees, stress, and uncertainty.
Solution? A prenuptial agreement (before marriage) or cohabitation agreement (if living together). In China, this is called “property notarization.” In BC, it’s a legal tool to decide beforehand how your assets will be divided if you split.
Do You Really Need a Prenup?
Short answer: Yes, if you want to avoid legal headaches and uncertainty down the road—especially if:
- You have significant assets before marriage
- There’s a big difference in your incomes
- You’re entering a second marriage with kids from a previous relationship
- There’s a family business or inheritance involved
What does BC law say?
If you don’t have an agreement, any increase in the value of pre-marriage property during your marriage can be shared with your spouse when you separate. A prenup can protect both what you brought into the relationship and what you earn or receive in the future.
Special Rules for Common-Law Couples
In BC, common-law partners only have property division rights after two years of living together. That’s when a cohabitation agreement can be especially useful—so everyone’s expectations are clear.
Key Terms to Include in Your Agreement
1. Sunset Clause (Change Clause)
Agreements should be flexible—life changes!
If you have children or your financial situation changes, your agreement should be reviewed and updated. For example, it’s common to waive spousal support at first, but after having kids, that may no longer be fair.
Reminder: If an agreement seems too unfair at separation (especially after kids), the court might change it. Review your prenup/cohab as your life evolves.
2. How You’ll Share Family Finances
Decide in advance:
- Who pays for daily living expenses?
- Who covers loans and debts?
- Will you split everything 50/50, or in proportion to your incomes?
- What if someone loses their job, or is on parental leave?
Being specific now avoids fights later.
3. Debt Responsibility
Spell out:
- Which debts are “family” and which are “personal”?
- Will you share each other’s student loans, or are those separate?
- What happens with credit cards, lines of credit, or mortgages?
4. Personal Asset Protection
- Keep personal bank accounts for your own property
- Open a joint account for shared expenses only
Principle: Anything you owned before the relationship (property, business, accounts, debts) stays yours—including any increase in value, if the agreement is properly drafted.
5. How New Property Is Divided
- If you buy property with your own money and it’s in your name, it stays yours
- If you buy something together and put both names on it, it’s shared equally
- If one person pays but both names are on the title, it’s presumed to be shared—unless the agreement says otherwise
- If you buy something together in specific shares, make sure it’s clearly documented and matched to your agreement
Tip: Keep records, especially for gifts or loans from family.
6. Gifts: What If My Parents Help Out?
In BC, gifts—especially from parents—can cause legal fights down the road.
Law:
- A true gift stays with the recipient
- A loan can be claimed back, but only with clear written proof
Real world: If your parents help you buy a house, make sure everyone agrees (and writes down) whether it’s a loan or a gift.
7. Inheritance and Estate Planning
A prenup can protect inheritances you receive—and make sure your spouse can’t contest your will later. It’s wise to also update your will after signing a prenup or cohab agreement.
8. “Cheating” Clauses: Why Courts Don’t Like Them
Some clients want a clause saying, “If my spouse cheats, they get nothing.”
Reality: These “clean break” or “infidelity” clauses are hardly enforced in BC. If a term is extremely unfair or punitive, a judge can set it aside.
Pro Tips for a Bulletproof Agreement
- Always provide full financial disclosure—hide nothing
- Each person needs independent legal advice from their own lawyer
- Review and update the agreement after major life changes (kids, moving, big financial shifts)
- Avoid “one-size-fits-all” templates for complex situations
Summary: Who Should Get a Prenup or Cohabitation Agreement?
- People with substantial premarital assets
- Couples with big income or age differences
- Second marriages, especially with children
- Business owners, professionals, or those expecting inheritance
A thoughtful agreement can give both partners peace of mind, protect families, and avoid future court battles.
Need Help Drafting an Agreement?
A good BC family lawyer will make sure your agreement is fair, legal, and enforceable—and customized for your situation.
Languages: English, Mandarin Chinese, Cantonese
Phone: 604-681-1611
Email: info@gleelaw.com
Website: gleelaw.com
This article provides general information about prenuptial and cohabitation agreements in BC. For specific legal advice, consult a qualified family lawyer.