"Do we need a marriage contract or cohabitation agreement?"

Tuesday, March 23, 2010

The answer was yes!

The hall is booked, we'll do the menu later, she's busy shopping for dresses and he's responsible for organizing the honeymoon, something exotic, romantic that they'll never forget.

Dad is pushing for a marriage contract and neither can be bothered - how unromantic.   Even more worrisome is will my fiancé still love me if I ask her/him to sign one.

Couples, on average, spend approximately twelve months planning their special wedding day. They look for houses,  mortgages, establish joint bank accounts, plan honeymoons, spend thousands of dollars on receptions, invitations, flowers, photographers, videos but rarely consider a marriage contract.  Even partners who choose to co-habit and not marry have the same option for entering into a co-habitation agreement and ordering their affairs.

Whether you need an Agreement can usually be determined during a consultation with a lawyer by discussing what your objectives are. If  your objectives include: keeping the family farm/home in the family; protecting assets you bring into the marriage; protecting a large monetary deposit on your matrimonial home; protecting your estate for children; or identifying financial responsibilities in the future relating to spousal support, then you may need an agreement and only a contract can protect you.

You can not deal with any matters involving children in a marriage contract/cohabitation agreement, i.e. determining how they will be raised and what support obligations you will have to them in the future. The courts have final authority in this area when parents cannot agree no matter what agreements have been signed. Children are not property.

You can and should plan your financial affairs and protect yourself and your spouse by having an open and frank discussion about your roles, responsibilities and expectations in the event the marriage/relationship fails. It seems more relationships end up in divorce then not, so speak to a lawyer first and get the right information. Do not plan your affairs based upon office gossip or  dinner conversations. Only a lawyer can properly explain the law, your rights and obligations. As well, once the law is properly explained and you understand how a contract will allow you to decide your own affairs without the law interfering, your partner should not have an objection.

Just as you begin to make plans,  start to think about a marriage contract/cohabitation agreement. More often then not what makes partner's uptight about signing a contract/agreement is that they are usually asked about it at the 11th hour and so it becomes suspect. Whereas , if all partners have the opportunity to get proper information, and advice and have the necessary time to digest it, it should not be threatening.

Both parties should have independent legal advice. One lawyer can not properly advise you both as your concerns will often be different. Approaching your marriage as, in part,  an economic partnership will help prevent resentment from building as your roles and responsibilities change during the relationship.

A  marriage contract/cohabitation agreement can be signed at any time and does not have to be signed prior to the date you marry/co-habit. For example, you can make an agreement to protect inheritances, especially when they are used to pay down mortgages on a matrimonial home.

Finally, if your concerned about the costs, think about all that money you spend on flowers you throw away or pictures you look at once every few years. Getting the right advice now for little cost, can save you thousands later.

As previously published in The Hamilton Spectator.

Joanne Guarasci practices family law with Ross & McBride LLP, in Hamilton.  You can email her at jguarasci@rossmcbride.com.