Why common-law couples should get a prenuptial agreement


Many people assume that a prenuptial agreement is only for people who are planning on getting married and they often don’t consider such an agreement necessary if they are simply in a common-law relationship. British Columbia’s unique Family Law Act, however, which treats common-law relationships similarly to marriages, means that a prenuptial or cohabitation agreement could be a very useful document for many common-law couples. In fact, as the National Post reports, without such an agreement in place, couples who part ways after living together could find their property subject to the same rules of division that apply in divorce cases.

Gaps in the previous law

British Columbia’s Family Law Act came into force in 2013 and replaced the province’s previous Family Relations Act. The new legislation primarily addresses concerns about common-law relationships, which have grown considerably in popularity since the Family Relations Act was passed in 1979.

The primary concern was regarding property. Under the Family Relations Act, both partners in a common-law relationship largely held onto whatever property was in their names after their relationship ended, regardless of how long that relationship lasted. For relationships that were decades old and involved one working person and one stay-at-home parent, for example, such a situation could lead to considerable financial insecurity for the stay-at-home parent.

Equal division

Such risks led to the passage of the Family Law Act, which largely treats couples who either have a child or have been cohabiting for at least two years as though they were married. As the Globe and Mail reports, the new law has had a dramatic impact on property rights. In British Columbia, common-law spouses who part ways could see whatever property and debt they acquired during their relationship split 50-50, regardless of whose name may actually be on the property. Exceptions to such a division include gifts, inheritances and property that was owned before the relationship began.

While such a law will help protect many people if their common-law relationship comes to an end, for others British Columbia’s unique legislation could come as a shock. Experts say that unmarried couples who are living together or have a child together should consider drafting a cohabitation agreement, which, like a prenuptial agreement, can cover how property is to be divided at the end of the relationship.

Talking to a lawyer

As with all legal documents, a prenuptial or cohabitation agreement should only be drafted with the assistance of a qualified legal professional. An experienced family lawyer can help clients with any family law concern, including those affecting common-law couples, in order to provide peace of mind regardless of the situation.