In separation and divorce, a number of separate, yet equally important, tools can be used to help resolve disputes. Commonly, the parties may choose to enter into a marriage contract (also referred to as a domestic contract or a separation agreement) to resolve their issues without court intervention. Mediation can also help parties settle various aspects of a property dispute. However, litigation may be required in some cases and can help parties narrow down their outstanding issues before bringing the marriage to an end.

At Roland Law, we understand that separation and divorce are some of the most stressful situations our clients experience, especially when there are complex property division disputes. This blog will explain how a domestic contract, particularly a marriage contract, can help resolve a family property matter.

What Is a Marriage Contract?

A marriage contract is a legally binding contract, similar to contracts encountered in day-to-day life, and is entered into voluntarily. In Canadian law, a marriage contract can be entered into prior to or during a marriage, or parties may enter into a separation agreement following the breakdown of the marriage. They are all called marriage contracts, and there are no statutory requirements that an agreement must be pre-nuptial.

In any domestic contract, parties negotiate and agree upon a settlement process regarding all aspects in their relationship, including support, a divorce and property division. To avoid future disputes and ambiguities, the contract should precisely identify the property, who it will belong to, and the funds to be paid when the property changes hands, if applicable.

A unique benefit of a marriage contract is the parties’ ability to remove the emotional aspect from the family dispute as much as possible. To do this effectively, the contract should achieve the objectives of certainty, finality and autonomy to help bring the relationship to an end, as the emotional aspect is almost always the most significant obstacle to achieving a settlement.

Another significant benefit of a marriage contract is time saved. By preparing this agreement, parties are often able to avoid prolonged litigation or other stressful processes, such as mediation.

How Do You Prepare a Marriage Contract?

In order to be found valid, a marriage contract needs to meet the following requirements:

• The separating couple have a realistic and good understanding of each other’s finances;
• Based on that understanding, they negotiated on how to divide their properties fairly, honestly and in good faith;
• Their agreement represented their intentions to resolve the issue on hand; and
• It met the couple’s expectations for the future, in order to move on to lead separate lives.

Determining whether a marriage contract is appropriate for use regarding a particular issue, such as parenting arrangements, requires a fact-specific analysis. The Supreme Court of Canada has continuously emphasized that courts should respect the autonomy of the parties to resolve their differences.

Do I Need to Retain a Lawyer to Negotiate and Prepare a Marriage Contract?

No, the parties to a marriage contract do not need to use a lawyer for the agreement to be valid, and independent legal advice (ILA) is not mandatory.

The law is clear that, while the court respects the parties’ autonomy to regulate their separation and divorce using an agreement, parties to divorce or separation agreements can be particularly vulnerable to unfairness and exploitation by the other party. This is a distinguishing feature from many other contracts outside of the family law context.

Several procedures were introduced by the Supreme Court of Canada to ensure that these agreements are fair, including the requirement for the parties to provide full and frank financial disclosure, and obtaining independent legal advice can help protect the parties and ensure that the agreement is upheld, particularly when complex financial circumstances are involved, such as spousal support, pension division, dividing business assets, etc.

How Do I Know When to Retain a Lawyer?

If you are unsure as to whether you should retain a lawyer to assist with your marriage contract and property division matters, you may want to consider the following questions:

• Are you under any pressure, such as time pressure?
• Are there uneven bargaining powers (e.g. does one party have stronger earning capabilities than the other)?
• Are you free to discuss reasonable and viable solutions or the terms are already set which allows little room for bargaining?
• Do you fully understand the nature and content of the agreement?
• Do you own properties that are located in different countries and their ownership is split?

If any of the above-listed elements (duress, unconscionability and other vulnerability) are present, retaining an experienced family law lawyer.

If I Have a Valid Divorce Agreement, How Do I Get a Divorce?

A divorce order needs to be signed by a Supreme Court of British Columbia justice, and is only effective as of the date when it is signed. In addition to a valid separation or divorce agreement, additional evidence (e.g., meeting the Divorce Act residency requirements) is required. If all is in order, a judge may sign a divorce order without a hearing. If the judge has questions about any of the evidence, a hearing can be brought to bring the evidence forward.

In British Columbia, a joint divorce can also be filed and obtained online using e-Divorce.

Contact Roland Luo in Vancouver for Trusted Legal Solutions in Complex Family Law Matters

As a diverse, multi-lingual firm, Roland Luo offers comprehensive family law services to clients from various cultural backgrounds. Roland Luo provides each client with practical legal advice and skilled representation in a variety of family law matters, including complex property division disputes and contentious matters.

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada, and the United States. To schedule a confidential consultation, contact us online or by phone at 604-800-4628.