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Family law: how postnuptial agreements influence divorce

For decades, the prenuptial agreement has been a popular way for couples to lay the groundwork for their marriages before tying the knot. British Columbia residents are likely aware that a "prenup", popularized in the media largely by high-profile celebrity marriages, helps set the conditions for asset division and child custody in the event of a later divorce. However, family law experts report that more and more people are choosing a "postnuptial" or "postmarital" agreement instead. 

Postnuptial agreements have become increasingly popular with couples who may find their marriages on shaky ground. Rather than divorcing outright, these couples may choose to draft an agreement that outlines, much in the same way as prenups do, how assets will be divided in the event they do in fact divorce. Unfortunately for some couples, the concept of a postnuptial agreement is still relatively new, and the jury is still out on how the courts will choose to handle them. 

While British Columbia does recognize the validity of a prenuptial agreement, a postnup is still new legal territory. Prenuptials have the benefit of centuries' worth of legal precedent backing them up, but postnups may or may not be honoured by a divorce court, depending on the individual court and the laws of the province where the divorce is taking place. It would be valuable for couples considering a postnup to seek legal advice to ensure it is drafted in the best possible way to be accepted by the court. 

Divorce is never easy, and family law only gets more complicated with each passing year. British Columbia residents who find themselves in a position of divorce might wish to consider a postnuptial agreement. Given little precedent exists for such documents, however, it may be in both spouses' best interests to seek individual legal counsel before making such an important decision. 

Source: Financial Post, ""You should do it right": More couples are signing postnuptial agreements despite being on shakier ground", Ben Steverman, May 1, 2017

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