More and more people are going to see Family Law lawyers before they get married to arrange for a marriage contract (called a “pre-nuptial agreement” in the United States or a “cohabitation agreement” if the parties are living together but not getting married). This trend seems to reflect couples desire to avoid the uncertainty of what may happen in Family Court and to avoid, from the outset, the possibility of a long, bitter fight. Since marriage contracts can also cover how the couple will organize their affairs during the marriage, some couples view them as an important part of considering what marriage means and how they will live their lives together. In addition, as people are getting married later in life, they are entering their marriage with more assets, and possibly business interests, that they do not want to have affected by the marriage. Since marriage contracts can be signed at any time, not just before a marriage, some couples use them as an alternative to separation as they can address the issues that are causing friction between the spouses.
Negotiating a marriage contract may not be romantic, but it should not be difficult. If the couple cannot work out the terms in a friendly manner, then what does that say about their married life together? If each fiancée has a fundamentally different view of what the marriage means, isn’t that something that it is best to discover before the wedding?
Marriage contracts can cover a lot of issues. There are some things they can’t do, but that will be the subject of another blog. Some of things that couples can do with the marriage contract are the following:
- Set out which spouse will own what and how property will be divided if the parties separate. There are very few restrictions on this and the spouses can divide their property in a manner that is very different from what would usually be the case under the Family Law Act.
- The parties can set exactly what amount of spousal support would be paid between them when they separate or specify that no spousal support will be paid.
- Set out which parent will direct the educational and moral training of the children during the marriage. However, if the parties disagree about this point after separation, the court always has the right to decide what is in the best interests of the children.
- Require the spouses to honour the terms of a shareholders agreement for a business, requiring a spouse to do things like resign from a family business on separation or not enforce judgements against a family business.
- Requires spouses to designate a certain property, or kind of property, as the “matrimonial home” so that other properties such as a cottage are not tied up as a matrimonial home regardless of how the family uses them.
- Specify who pays for what expenses during the marriage and set out what will happen if one spouse does not honour that obligation.
- Prevent either spouse from attacking the others pension to ensure that the pension remains intact even if the marriage does not.
The above are just some of the many advantages to negotiating a marriage contract. They show how a marriage contract can offer a level of certainty about what will happen if the marriage breaks down. That certainty simply does not exist without a marriage contract.