With the Holiday season in the not-so-distant past, and the unmistakable glow of romance in the air surrounding Valentines Day, you may have recently taken the next step with your partner and gotten engaged. If you did, congratulations on your engagement! Now comes the daunting task of planning the actual wedding. However, there is one thing that couples often leave off of their wedding planning checklist: getting a prenuptial agreement.
Now at this point you might be saying “I can’t think of anything less romantic than talking about the potential end of our relationship”. I get it. I said the same thing before I went to law school. But now, one of the most common remarks I hear in consultations with potential clients is “I wish I had known this before I got married. I would have got a prenup.”
A prenup, otherwise known as a prenuptial agreement, allows couples that are contemplating becoming spouses to essentially contract around the letter of the law when it comes to property division. In Saskatchewan, the division of family property is governed by The Family Property Act. When parties become spouses, by either getting married or living together for two years, their property is presumed to be family property and presumed to be equally divisible. Some property values are exempt from this presumption, such as the value of property held by either spouse before they were spouses. However, the growth in value of any of those assets is likely on the table to be divided if the relationship breaks down.
The other consideration to keep in mind is the family home. The family home is treated a little differently than other pieces of property. It is also presumptively equally divisible, meaning each spouse has an equal right to half of the equity, however it is not subject to the same exemptions as other family property. Whereas the value of other property owned before the marriage can be exempt from division, it does not matter who owned the family home before the parties became spouses. There is no exemption for the value of the family home. So, if your significant other moved into a home that you own, they likely have a right to half the equity the day that you become spouses.
Which brings me to the whole point of this article: the Top 10 reasons why couples should consider a prenup when wedding planning:
By far, the most common excuse we hear that couples do not consider a prenup is that they don’t want to think about the end of their relationship while planning a wedding. I would suggest this is absolutely the wrong way to approach a prenuptial agreement. I would, instead, encourage you to think about a prenup as a house or car insurance policy. You pay for insurance policies on your most prized possessions, why is there the same hesitation to have some insurance on your relationship? A prenup is there to use if you need it, and if you don’t, it just sits in the back of a closet somewhere with the rest of your insurance policies.
2. Gives you certainty
One of the major things our clients crave, and that we can all too often not provide, is certainty on how their property will be dealt with. One of the hardest parts of a separation is looking at the life you’ve built together, and drawing up lists of who gets what. With a prenup, this is already done. If you do have to claw your way through a period of separation, this major stressor is already taken care of.
3. Freedom to come to whatever agreement you want
A prenup, or any kind of interspousal agreement gives you both the opportunity and power to come to your own decisions about what is going to happen to your property if the worst-case scenario happens. Without a prenup, you may be forced to leave it up to a Judge to determine what happens with your most prized possessions.
4. Cost efficient
In a lot of cases, divorce is not cheap. If you and your partner cannot agree how to divide everything after you’ve separated, it can cost several thousands (sometimes as high as six-figures) in legal fees to litigate over family property. However, if you have already decided what happens with your major family property, this can save you several thousands of dollars down the road.
5. Protect yours (and your partner’s) current assets
Once you’re married, what’s theirs is yours and what’s yours is theirs (mostly). This extends to investments, bank accounts, vehicles, real estate, etc. If there comes a time where you have to walk away from the relationship, you could lose up to half of your current assets.
6. Protect your (and your partner’s) future assets
Similarly, whatever you accumulate over your relationship through your hard work could be taken by someone else if the relationship breaks apart. This includes pensions, investments, any kind of property. Keeping separate bank accounts does little to protect any accumulated wealth from flowing to your partner upon a relationship breakdown.
7. Protect yourself from debts accumulated by your partner (known or unknown)
Another comment I hear in consults with potential clients is “my partner maxed out this credit card that I didn’t know about, am I saddled with this debt?” and the answer could be yes. Although family debts aren’t technically considered family property under The Family Property Act, they are taken into account when we look at dividing family property. Instead of being saddled with significant financial burdens after going through the emotional devastation of a relationship breakdown, you can simply put in a prenup that whatever debts are solely in your names, you will take sole responsibility for.
8. Contract out of spousal support obligations
We often say spousal support (previously known as alimony) is the hardest thing to convince someone to pay and the hardest thing for someone to give up if they feel entitled to it. Although yourself or your partner isn’t automatically entitled to spousal support, there is the potential you could end up paying for their standard of living after the relationship. A prenup allows you to contract out of this possibility right at the beginning.
9. Lessen the emotional burden if the relationship breaks down
The end of a relationship is one of the most emotional times you will go through. Something that can make it easier though – not fighting over who keeps the minivan or the KitchenAid mixer. Coming together while you and your partner are still a team may lessen the burden later if your team dissolves.
10. Provides a way to discuss more difficult issues before tying the knot
Less romantic things like finances and debts should definitely be discussed before you get married. But sometimes it’s hard to bring up the difficult conversations. Broaching the subject of talking about a prenup can be a way to bring up these conversations in a safe, neutral way.
Thinking about, and talking about, putting together an “insurance policy” on your marriage is a very important step to take before walking down the aisle. We also recommend that you update your prenuptial agreement consistently (every couple of years or so), and especially around big life changes such as having children or gathering more property. Pop a bottle of you and your partner’s favourite wine, throw on some romantic or fun music, and have a conversation with your partner. Trust me, it’s better to have the conversation between the two of you now instead of through lawyers down the road.
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