A Kinder and Gentler Marriage Contract

Philip M. Epstein, Q.C.

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The significant rise in the number of requests for cohabitation agreements and marriage contracts is not surprising. Although they generally did not become legal in provinces throughout Canada until the late 1970's and early 1980's, they did not really come into their own until family law reform legalisation passed throughout Canada and that legislation divided non-family assets as well as family assets. There were a growing number of couples that were living common-law. There were increased divorce rates and increasing numbers of parties who wanted to ensure that there was no property division. Many wanted to avoid the same experience that they had lived through at the time of their first divorce and, thus, sought domestic contracts to protect their assets.

However, whatever the underlying reason for the marriage contract or the cohabitation agreement, the problem is how to present it to one’s spouse and how to make sure that it is negotiated in a way that does not jeopardize the relationship.

Make no mistake about it, for most parties that are presented with a marriage contract, they understand that it means “I do not trust you and I need to protect myself from you.” No matter in what context agreements are presented, there are bound to be hurt or bruised feelings. This piece is about a kindler, gentler and better way to deal with this difficult issue.

The standard practice in negotiating these agreements is to have a lawyer draft the agreement for the person propounding it and then send it to a lawyer for the other party. The lawyer for the other party is placed in a difficult, if not hopeless dilemma. The lawyer wants to protect the client but immediately sees problems in the agreement. The client, on the other hand, wants to get married or maintain the relationship. The client does not see any problems in the agreement because the client believes that the relationship will last forever. Alternatively, the agreement is generated by one of the parties’ in-laws and neither party truly understands the agreement and neither party really wants the agreement. The lawyer explains to the client that he or she should negotiate for better terms and looks into his or her crystal ball and decides that the agreement provides grossly insufficient protection if the relationship or marriage were to break down. The person propounding the agreement, when he or she hears the lawyer’s complaints, blames the lawyer for inter-meddling and preventing the simple agreement from being signed. The bride-to-be (because it is usually the bride-to-be) wants to get married and cannot understand the problems and, certainly cannot reconcile what her fiancé is telling her and what her own lawyer is telling her.

The lawyers then start to exchange correspondence. The correspondence often becomes increasingly hostile and, in the meanwhile, the wedding date is fast approaching because the parties, as usual, left it too late to allow for a reasonable negotiation time before the wedding.

Eventually the bride-to-be signs the agreement, although her lawyer is dissatisfied. She is throughly upset at the process. She is angry at her fiancé for putting her through it. She is angry at her own lawyer for compounding the problem. She is angry at her father-in-law for forcing the issue and the special time that should have been enjoyed as a lead up to the wedding has been grossly interfered with.

If all of this sounds familiar it is because lawyers and parties too often engage in this style of negotiation with respect to the agreement.

There is a better way. When lawyers are approached for a marriage contract, they should outline in detail, for the client, the various alternatives available since there are a wide variety of results that may obtain on the breakup of a marriage or death. They need to explain carefully the different results that should obtain if the parties separate and why that should be different from the results if there is a break down of the relationship by premature death of one of the parties. The parties need to explore in detail the support provisions of the proposed agreement and understand in light of Miglin they cannot easily contract out of support obligations. If the parties are not to share in property, the parties need to understand what they are giving up and what are the alternatives. At the end of the day, however, in order to prevent any misunderstandings, both between the parties and the lawyers, the parties need to meet face to face in the same room with their lawyers. The collaborative law approach to resolving disputes for parties who are separating has much to offer in terms of the approach that should be used to negotiate a marriage contract. The parties not only need to understand their legal rights from their own counsel, they need to understand and appreciate the other party’s needs and concerns as to why a marriage contract is being asked for in the first place. If these kinds of four-way meetings are approached with the spirit of cooperation and mutual desire to reach a satisfactory agreement, then the adversary process which is so inimical to the successful negotiation of a marriage contract will not play a role.

Negotiations for a marriage contract should never start off with one lawyer presenting the other side with an agreement. Lawyers’ instinctive reactions are to make changes to any agreement sent to them by the other side. A lawyer feels that he or she has not done their job unless they do make changes. Once you embark upon this road, it is a downward spiral. Far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting.

This is an approach that I always recommend to clients as soon as I am retained in connection with a marriage contract. I find that it dramatically reduces the chances of misunderstanding and upset. The negotiation and the agreement becomes a collaborative work, designed to lead to an agreement that everyone can live with. There is no question that the adversary process, which is so often utilized to resolve family law cases, has absolutely no place in the negotiation of a marriage contract. We need to understand where the parties are at that time in their lives. We need to appreciate the enormous impact that a marriage contract may have upon separation and death but we need to do so in a sensitive fashion that will not drive the parties apart. That is particularly so since trying to negotiate an agreement when the wedding is weeks or even days away, just heightens the anxiety and will lead to problems later on.

Arnie Becker of L.A. Law always said that he never saw a pre-nup that he couldn’t break. While Arnie was probably wrong, it is at least apparent that agreements that are negotiated in this fashion will, as a starting point, have a much better chance of standing the test of time.

Mr. Epstein is the senior partner of Epstein Cole LLP and the Editor-in-Chief of the Reports of Family Law.