A Pre-Nuptial Agreement is an Agreement between spouses that primarily sets out how they wish to deal with their assets and debts, whether jointly owned or individually owned, should the couple separate. These agreements also typically set out what happens on the death of either spouse. There is a specific legislative regime of how property is to be dealt with upon the separation of spouses, whether married or common-law, and that is set out in The Family Property Act.
If spouses do not want the legislation to apply, they may enter into an agreement setting out how they intend to deal with their property, which may be contrary to the legislative regime. Upon executing the agreement, the parties are contractually bound to that agreement.
These agreements are known by many different names including:
- Spousal Agreement – this phrase applies to any form of agreement between two spouses, including but not limited to Pre-Nuptial Agreements, Post-Nuptial Agreements, Cohabitation Agreements and Separation Agreements;
- Pre-nuptial Agreement – when entered before a marriage but in contemplation of a marriage;
- Post-nuptial Agreement – when entered into after a marriage;
- Marital Agreement – when entered into in contemplation of or after a marriage;
- Cohabitation Agreement – when entered into prior to or while parties are cohabiting, whether married or unmarried.
Why should I get a pre-nup or cohabitation agreement?
There are many reasons that couples enter into Prenuptial or Cohabitation Agreements. Most often, it is to protect individually owned property, assets or debts. In Manitoba, spouses both married and common-law, are entitled to an equal sharing of all property acquired during a relationship from the time the couple begins living together to the date that they separate. For example, if one spouse purchases a home using only their own money during the parties’ relationship, the other spouse will become entitled to 50% of the equity in that property, unless there is an Agreement that says otherwise.
Another reason parties may enter into a Prenuptial or Cohabitation Agreement is to protect property or assets owned prior to the couple’s relationship. For example, if one spouse owned a business prior to the relationship, the couple may enter into an agreement that the other spouse will not obtain any interest in that business no matter the circumstances. The Agreement could also specify very specific circumstances under which a person may obtain an interest in the business.
Spouses may also enter into an Agreement to set out how they intend to deal with Spousal Support, should they separate. There are very specific formalities that must be in an agreement where parties are dealing with Spousal Support to make efforts to ensure that the Agreement cannot be later set aside by the court upon application by one of the spouses.
Is it too late for a pre-nup after I’m already married?
It is not too late to enter into a pre-nuptial agreement after you are already married. Spouses, whether married or common-law, can enter into an agreement at any point in their relationship so long as they both agree to do so.
I’m not married, can I still get a pre-nup?
Yes, when couples move in together, they may consider entering into a Cohabitation Agreement. Couples that have already been living together for some time can also enter into a Cohabitation Agreement whether married or not. Common-law spouses and married spouses have the same rights under the laws of Manitoba as it relates to property division.