As we enter a new year and a new decade, there are some who will enter a new relationship. For those who have been in family relationships before and they have not worked out, ending in divorce or separation, it is quite common to learn from the mistakes of the past. One of those mistakes to overcome is to “be prepared this time.” So, if one-half of marriages will end in divorce, many people embarking on a new relationship – whether a marriage or a common-law relationship – will often ask me: “should I get a pre-nup?
Before I start, let me dispel some common myths and misunderstandings.
First of all, in Ontario, we do not call them “prenuptial agreements.” That’s an American term. We call them cohabitation agreements or marriage contracts, depending on the nature of the relationship. Secondly, it is not limited to those who have loved and lost, i.e., you don’t have to have been separated or divorced before to enter into one. Third, it’s not just for the “rich and famous” to enter into them – anyone entering into a relationship of some permanence, whether that be a legal marriage or cohabitation/common-law arrangement, should consider it.
As I deal more so with cohabitation agreements than marriage contracts, I will focus this blog on such contracts.
The cohabitation agreement will set out what the parties come into the relationship with, and that they will keep such items upon the end of the relationship. It will also set out what happens with property acquired during the relationship, but what the agreement stipulates will depend upon what the parties want to do. Some will say, “what’s mine is mine, and what’s yours is yours,” others will say “it will co-mingle and will be divided equally,” and a few even say it will be divided according to the contribution made in the relationship. It depends upon what each party brings into the relationship – money, a pension, a home, a cottage, a business, or simply their love and affection. Some will be okay with the home becoming the matrimonial home, and having the new partner going on title; for others, they will insist that the new partner will never have an interest in the home. That’s fine – such agreements are always custom-tailored to the needs of the clients.
Along with property issues, the parties can address the issue of spousal support upon the end of the relationship. They can agree that it can be paid for a defined term, or it can be indefinitely, or it can be waived. The latter is the most common provision that parties want in these agreements. With both men and women having nearly equal earning potential in today’s marketplace, both sides usually want to make sure neither is obliged to support the other financially upon relationship breakdown. The same goes for those in a same-sex relationship. Once again, depending upon the needs of the client, a skilled lawyer will craft an agreement that will address the concerns of the client.
What the cohabitation agreement will not address are the issues of custody, access, and child support.
Those issues are the right of the subject child or children, and one cannot contract out the rights of others. As a result, when a client is entering into a relationship where the other party, or even both parties, are bringing in a child or children, they need to know that they could be held in the place of parent down the road. That’s for another day and another blog.
Finally, the question everyone asks – what’s the cost.
Much like ordering a bespoke (custom- made) suit, it will depend upon what you want and what you need. Most agreements start at $1,500.00, and as clauses, as necessary, are added to protect and address special interests, costs could go up. Some may say the cost is not worth it, and state that they will take their chances “down the line.” To those future clients, I say: “I also do separation agreements, and they start at $2,000.00!”
One last point. Any such agreement should have proper disclosure of each party’s finances, and each party needs to have independent legal advice. Failure to do so may negate the agreement, and thus, the intentions of the parties.