Pre-nup/provinces - suggestions?

[billconnors2014]

Hello:

I have some questions regarding pre-nuptial agreements. It relates to province/common law vs. pre-nup/contract law. Here’s my situation:

Later this year (2014), my fiancée and I will be moving out west to Vancouver. We intend to stay there for 2 - 3 years. Two big unknowns right now are: # 1) We will likely marry within a year of moving there but the location of the wedding is TBD - our families are widely dispersed and the wedding will most likely take place in another province, not in BC; and # 2). We are not even sure what province we may end up living in after our few years in Vancouver (highly likely it will not be BC).

We are considering finalizing our pre-nuptial agreement in the next few months * before * we make the move to Vancouver, but we are currently strongly leaning towards waiting until * after * we get to Vancouver to do the pre-nup.

If we wait until after we arrive in Vancouver, can a lawyer in Vancouver develop a pre-nup for us that will be valid in other provinces in the future, regardless of where we wed or where we move during our marriage? Given that the pre-nup overrides any province’s common law (my understanding), my thinking is that a pre-nup drawn up by a Vancouver lawyer, signed by us in Vancouver still carry with us validly for the rest of our marriage regardless of the province we wed in (e.g., Saskatchewan) or end up living most of our married life in (e.g., New Brunswick). Is my thinking correct wholly or partially (e.g., would the agreement need to have a clause specifically stating that we agree that this private contract dictates terms regardless of our future mobility/provinces we may wed and live in the future? Or would we need to sign an addendum to that effect for each province we move to in our lives?)?

What are your suggestions on our situation/possible approaches?

Many thanks!

[FWB]

@BillConnors2014....

Wow....a lot of unknowns in your post, with a menagerie' of questions to boot.

Given that the pre-nup overrides any province’s common law (my understanding),

Yes....but there is a "but", and you and your spouse have the fiduciary obligation to each other to make sure you do this right.

All Canadian courts have recognized that private arrangements between married or separated parties must be respected....CHECK!

The Supreme Court of Canada cases of Hartshorne v. Hartshorne and Miglin v. Miglin stressed the importance of respecting fairly negotiated private wishes and arrangements of parties to a marriage or marriage like relationship.

The new Family Law Act specifies how agreements should be drafted in order to have the proper effect and how a higher standard for setting aside agreements will apply after March 2013. These changes will reduce the courts’ intervention in properly drafted prenuptial or marriage agreements.

However, there is always a chance that the court may declare an agreement invalid or unfair based on evaluating fairness of the terms of the agreement and the circumstances surrounding the formation and current state of the agreements fairness at the time of marriage breakdown. Generally, the more an agreement accurately predicts how things unfolded over time in the relationship the greater the chance it will be enforced.

We are considering finalizing our pre-nuptial agreement in the next few months * before * we make the move to Vancouver, but we are currently strongly leaning towards waiting until * after * we get to Vancouver to do the pre-nup.

NEW BC Family Law Act Section 93 Says Fairly Negotiated Agreements Will Be Upheld Unless Significantly Unfair

The new BC Family law Act effective march 2013 has incorporated the common law principles that apply to upholding or setting aside prenuptial and separation agreements and raised the bar for setting aside fairly negotiated agreements as a result of the new excluded property regime which shares the gain only instead of the whole value of certain assets acquired before and during the marriage.

Some blurb from it:

Here is the new section 93 wording:

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

Is my thinking correct wholly or partially (e.g., would the agreement need to have a clause specifically stating that we agree that this private contract dictates terms regardless of our future mobility/provinces we may wed and live in the future?

You can add the clause, but note was has been said above about "unfairness"...other party might use that to their advantage somehow

It goes without saying.............

If you are thinking about cohabiting or marrying a loved one, please consider entering in to a cohabitation or marriage agreement. You may want to seriously consider a prenup if you:

Have considerable assets such as a home, real estate investments, stock (including stock options) or retirement funds that make you (or have the potential to make you) much wealthier than your fiancé;

are giving something up to marry or live in a marriage like relationship you need to be compensated for;

are much younger or older and are concerned about financial security;

Own all or part of a business or professional practice;

Have children and/or grandchildren and are in a second marriage; (in-loco anyone)?

are expecting an inheritance, trust settlement, gift, personal injury award;

Have loved ones, such as elderly parents, who need care

Have (or are pursuing) a degree or license in a potentially lucrative profession. (Ah...yes, money is not everything but it helps if the other person is earning a reasonable income)

Source for BC family law

***Disclaimer: I am not a Lawyer, and this should not be taken as "official legal advice! The onus is on you to seek advice of a professional lawyer

[arabian]

First of all I would say it is very smart of you and your fiance to look into securing your respective futures by entering into a prenuptial agreement.

From what little I have read on CanLII on this subject, I would say that it is important that you ensure the agreement covers Family Property Act(s) and the Pension Benefit Act(s) of the province you may reside in. You may have to update your agreement from time to time in the future.

You must recognize that a "material change of circumstances not contemplated at the time the agreement is endorsed" is the basis upon which most people challenge their agreements. Another legitimate reason to overturn an agreement is that one of the parties did not seek independent legal advice.

With that said I believe you are on the right path. Just keep an eye to the Family Property Act and Pension Benefit Act of the province you end up in.

Congratulations and the best of luck to you in your future together.

[Links17]

-Move to Quebec, live as common law, sign a cohabitation agreement.
-Be aware how child support is calculated to understand what the obligations are if you split.

Good job on checking this out before the divorce (err... marriage )....