All You Need is Love – And a Solid Pre-Nup
The Beatles said it in their iconic song: “All You Need is Love”. But now that romance of Valentine’s Day is behind us, it’s a great time shift focus away from the emotional components of love, toward the more practical legal aspects of a spousal union.
A domestic contract – perhaps ironically – could be one key to relationship bliss even after the honeymoon phase is over. True, they might be criticized as being unromantic, but they are a great way to curtail disputes in the sad event that the once-happy couple starts humming Neil Diamond’s famous tune, “Love on the Rocks”.
In Ontario, the umbrella term “domestic contracts” covers the type of agreements sometimes alternatively referred to as marriage contracts, cohabitation agreements, or pre-nuptial agreements (or pre-nups). They are widely used by couples across the country, and can be entered into between any two individuals who plan to marry or cohabitate long-term.
Both spouses sign a contract to deal with items such as how their property will be divided between them upon separation or divorce. The agreement can also cover issues like spousal support, division of pensions or retirement funds, and division of assets upon one or both spouses’ deaths. (Some of these rights will also be governed or impacted by legislation; for example domestic contracts cannot deal with parenting time or child custody and support issues. Likewise, the legal treatment of the matrimonial home upon separation and divorce is also specifically legislated-for.)
The contract must not only avoid addressing prohibited topics, but it must also be freely negotiated, and should be the result of both parties having separate and private independent legal advice that fully canvases the legal repercussions of the document being signed.
With that said, domestic contracts are always a great idea but are not necessarily carved in stone if they are flawed in some respect. Courts can freely set them aside in specified circumstances, such as where one spouse failed to make full disclosure of his or her assets, or where there was some legal flaw in the way the contract was signed (e.g. duress, unconscionability, or lack of formal validity such as being in-writing and signed before a witness).
But when done right – and forgive the puns – at the “true heart” of a domestic contract is the “burning desire” for certainty. Its object is to protect each member of the couple in the event they choose to divorce in the future.
Back to the final refrain of that infamous Beatles tune, when it comes to starting – or ending – a relationship, it’s sadly optimistic to think that “Love is All You Need… Love is All You Need…”