At Kimball Law we can help you protect your assets and your income prior to cohabitation, or marriage.
Matrimonial Agreements & Legal Services we Offer
If you’re thinking about entering into a serious long-term live-in relationship with a new partner or spouse, and you have acquired significant assets and/or are earning a good income that you’d like to protect should things not work out, it is important to have a co-habitation agreement or a pre-nuptial agreement. It may be important to protect assets that you owned prior to starting your relationship and which have not been contributed to by your new spouse.
If you are about to embark on a second such relationship and have children from your first, it may be important to protect those assets for your children in the event of your death. This type of agreement serves to supercede many of our default matrimonial laws in the event of separation, divorce or death.
A properly drafted agreement will protect those assets from claim or division by your spouse should your relationship not work out. Alternatively, it can ensure that children from a first relationship receive an inheritance that otherwise might be at risk without such an agreement. Getting a co-habitation or pre-nup agreement is an easy matter and is quite affordable- certainly compared to the costs later on should your relationship not work out.
When we meet we will ask you to bring a list of your assets (such as the types of accounts you own including; investment accounts ( registered and non-registered), bank accounts, pensions, real estate holdings, that should probably be referenced in your agreement.
What is a prenup?
A “pre-nup” is short for a prenuptial agreement. This is an agreement that parties can sign to protect and control existing and sometimes future assets from division or claim by the other spouse. A pre-nuptial agreement is prepared and signed prior to marriage or the “nuptials”.
Why have a prenup?
As indicated, the benefit of a pre-nuptial agreement is to protect existing assets if you have significant assets prior the marriage or, alternatively, protect any future assets that you might acquire, such as a business, an inheritance or pension. Without such an agreement, you risk losing control of what happens to your assets upon divorce due to matrimonial laws. Currently, our government is looking at changing the Matrimonial Property Act which may expose certain assets which were previously considered to be exempt from division. It may be now, more than ever, important to have a pre-nuptial agreement to provide for such contingencies.
Benefits of having a Pre-Nup
The primary benefit to having a pre-nuptial agreement is that it will protect your assets from a claim for division by your spouse should your marriage not work out. It will protect you from having to fight over those assets and incur unnecessary and high legal expenses to try to protect them later.
What happens if you don’t have a pre-nup?
Without a pre-nup, assets that you own prior to marriage could be divided after separation even though your spouse may not have made a contribution to that asset. Under our current Matrimonial Property Act, business assets are exempt from division, however, certain claims are still available to a non-owning spouse and which may be made. A prenup can protect those business assets.
At this time, there are proposed amendments to the Matrimonial Property Act which will, without a pre-nup (or a marriage contract or co-habitation agreement), include business assets as being subject to division upon the dissolution of a marriage.
What is a marriage contract – is it different from a pre-nup?
A marriage contract is similar to a pre-nup or co-habitation agreement. It is simply, for lack of a better term, a prenup that’s done while the parties are married. Therefore, if a pre-nuptial agreement was not done prior to the marriage (and assuming the parties are still happily married) then a marriage contract can be prepared and signed after the parties marry to protect certain assets from division by the other.
Why have a marriage contract?
What does a marriage contract protect & include?
A marriage contract can include any assets that you may wish to protect from claim or division by your spouse upon a breakdown of your marriage. The point of including them is to protect them from division so that if the marriage does breakdown and the two of you separate, those assets will not be on the table for division or “not in the pot”.
What isn’t included & Limits of a Marriage Contract
There are some things that cannot be included in a marriage contract, pre-nup or co-habitation agreement and one of those is child support. You cannot enter into a contract with your spouse or intended spouse that prevents that spouse from later making a claim for child support. You can however include a waiver of spousal support. The reason for this is because child support is considered to be “the right of the child”, not the right of the spouse or party. So for instance, a party signing a marriage contract or prenup can waive his, her or their rights to make a claim against you for spousal support if that person is mentally competent, an adult, not subject to co-ercion, and making their own decision. It is imperative, however, in order for the marriage contract to be as unassailable as possible, that the other spouse receives independent legal advice to ensure that they understand their rights and obligations under that agreement.
In addition to not being able to include child support in a marriage contract, neither can custody, access nor parental rights be included in a marriage contract. The courts will not accept an agreement that does not consider the best interests of the child which cannot be anticipated before having a child or children. In addition, our courts always retain jurisdiction to hear matters affecting the children. In other words, two adults married or living common-law cannot “barter” away their children’s rights.
Contact a Family Lawyer in Nova Scotia
Our lawyers at Kimball Law are knowledgeable family law lawyers who practice primarily, and almost exclusively, in the area of family law. Our top priority is representing our clients and your interests regarding their family law matters, including marriage contracts and prenuptial agreements. Call Kimball Law at (902) 422-8811 to book a consultation with one of our Nova Scotia family lawyers for assistance with your agreement and contract needs.