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What is a marriage agreement?
A marriage agreement (sometimes informally called a “prenup”, or a property agreement, depending on when it is made) is an agreement a couple makes before marriage.
This agreement sets out the assets and debts each person brings into the relationship, whether those assets and debts should be joint or separate, and agreements about what should happen in the case of separation or divorce.
These agreements are binding, subject to the provisions of the Family Law Act and are given strong presumptions under s. 6 that they are effective.
How does a marriage agreement differ from a cohabitation agreement?
Cohabitation agreements are essentially the same thing as marriage agreements (and are governed by the same section of the Family Law Act).
A marriage agreement is usually put in place before two parties get married. Marriage agreements are generally made by couples who are getting married, as opposed to living together in a marriage-like relationship.
A cohabitation agreement is more commonly made by a couple who intends to live with each other in a marriage-like relationship, rather than getting married.
When is it too late to get one?
Marriage agreements can be made either before or after marriage. Of course, once a couple is separated, they will make a separation agreement rather than a cohabitation or marriage agreement.
What can go into these agreements?
All family law issues can go into these agreements, including how property will be divided, spousal or child support, and parenting time. You can chose to address some issues, but not others. You can also have multiple agreements, revise former agreements and more.
Who should have one?
Having a prenup agreement is a very personal choice. The reasons for making a prenup vary from couple to couple.
While many feel it’s bad luck or unromantic to broach the idea of a property agreement with your beloved, having one in place is a form of security.
that your decision now could prevent an ugly, bitter fight in the future. People change and so do families, and there’s nothing wrong with being prepared if your family is unable to continue in the same way.
In particular, prenup agreements are recommended for those entering relationships with significant assets (or debts), who may wish to make clear what they brought into the relationship. It’s also recommended for those entering mixed or blended families to make clear what assets need to stay in your family, and which are to become mixed or blended. Lastly, those making the decision to forego work in favour of a life at home may wish a commitment of spousal support to be included.
How do I talk to my future spouse about a prenup?
As with all things around marriage and relationships, it’s important to be as clear a communicator as possible. Emphasise that you’re not asking for this because you expect problems, but as a way to keep everything clear. Talk to them about their feelings, what they believe should be in the agreement and work together.