Can Couples Sign an Agreement Before Moving In Together in British Columbia?

Moving in together is a big step, and many couples want to settle who owns what before they do. It is a sensible conversation, but the law has a particular starting point for unmarried couples.

This article explains when partners become spouses in British Columbia, how the default rules work, and why an agreement signed before moving in deserves careful thought.

This article covers the law of British Columbia.

When do you become spouses?

A person is a spouse under the Family Law Act if married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least two years. Outside Parts 5 and 6, having a child together can also make you spouses.

For property division under Part 5, unmarried couples are treated as spouses only after two continuous years of cohabitation. The relationship begins on the earlier of the date you began living together in a marriage-like relationship or the date of marriage.

What happens if you sign nothing

Once you are spouses, you are presumptively entitled to family property and responsible for family debt. On separation each has a right to an undivided half interest in family property as a tenant in common, subject to an agreement or order that provides otherwise. A written agreement can opt out of the default rules.

Spouses can make agreements about dividing property and debt despite the default rules in Part 5, but a court keeps the power to set those agreements aside under section 93. So the default rules are best understood as a starting point that a written agreement can change.

Can you sign before moving in?

Writing down your intentions before you live together is a sensible thing to discuss, but how the law treats it is less certain. The section on property agreements refers to what spouses may agree, and unmarried partners are not spouses for property purposes until two years of cohabitation. Whether an agreement signed before that point carries over automatically, and how a court would treat it later, depends on the facts and the wording. A lawyer can confirm.

The Act's set-aside protections apply to a written agreement with each spouse's signature witnessed by at least one other person. Whether those protections reach an agreement signed before you became spouses depends on your situation, so it is worth confirming with a lawyer.

If a witnessed agreement is challenged, the Supreme Court may set aside or replace all or part of it only if one of the listed circumstances existed when it was made. Those circumstances are that a spouse failed to disclose significant property or debts or other relevant information, that a spouse took improper advantage of the other's vulnerability, including ignorance, need or distress, that a spouse did not understand the nature or consequences of the agreement, or that other circumstances would make a contract voidable under the common law. Even then, the court can decline to act if it would not replace the agreement with an order substantially different from its terms. Separately, the court may set aside or replace an agreement that is significantly unfair, considering the time since it was made, the spouses' intention to achieve certainty and how far they relied on its terms. An unwitnessed signed agreement is not automatically void, because the court may apply these rules to it if that is appropriate in all the circumstances.

A safer approach

• Sign a written, witnessed agreement before moving in if you want your intentions recorded, knowing its effect is not guaranteed.
• Once you are spouses, confirm or replace it with a new written agreement. Spouses may make a property agreement during the relationship, and the Act does not limit when it is made.
• If you marry, remember that the relationship is dated from the earlier of living together or marrying.

A property agreement can divide property and debt equally or unequally, include or exclude items such as an inheritance, a business or a home, and value assets differently.

What an early agreement cannot do

Terms about children signed in advance are generally not binding. Child support and parenting agreements are binding only if made after separation, or when you are about to separate and mean them to take effect on separation. Even where spouses agree to waive spousal support, the waiver is not beyond review: a court can still set it aside in limited circumstances, including where it is significantly unfair.

An agreement cannot simply create guardianship, and contact terms are not binding by default. A spousal support condition that a spouse abstain from sexual relations after separation is not binding. An agreement also cannot put spousal support terms out of a court's reach: a court may set aside or replace them if, when the agreement was made, a spouse failed to disclose income, significant property or debts, took improper advantage of the other's vulnerability, did not understand its nature or consequences, or other circumstances made it voidable at common law.

What to do next

• Write down what each of you owns and owes today, and share it openly.
• Decide what you want to keep separate and what to share.
• Have a family lawyer review the wording, especially given the uncertainty about timing.
• Sign in writing with each signature witnessed, and keep copies.
• Diarize a review once you reach two years of living together, or when you marry.

Frequently asked questions