Most people are familiar with the concept of a prenuptial agreement: a document outlining the division of assets, property and child custody in the event of a divorce, drafted before the marriage even happens. However, British Columbia residents may be less familiar with the newest family law trend for couples considering divorce: the postnuptial, or postmarital, agreement. These agreements are drafted and signed after the marriage, but before a couple decides to pursue the divorce process.
There are many reasons people choose to draft a postnuptial agreement. In many cases, the marriage is on shaky ground, and the couple wishes to preemptively discuss the fallout of a divorce in specific terms. In this way, a postnuptial agreement is similar to cooperative divorce, wherein the couple sits down with a neutral mediator to block out a plan of who will get what in the divorce without going through the courts. However, the postnuptial agreement faces legal challenges in the courtroom.
Prenuptial agreements have the benefit of hundreds of years’ worth of legal precedent, making them commonly accepted documents in divorce proceedings. Postnuptials are still a very new concept, and not every court will agree to honour them in a divorce case. This depends largely on the individual court and the laws of the province or territory where the divorce is taking place.
Family law experts attest that it is better to be prepared when entering the divorce process, a sentiment shared by many British Columbia residents. Whether a couple is drafting a postnuptial agreement or launching directly into divorce, it can benefit both spouses to seek out individual legal counsel to help guide them through the process. This can cut down on red tape and smooth the road toward the divorce transition.