If I Make you Sign a Pre-nup… Does That Mean I Don’t Love You?
Topic: Family Law
I was presented with an interesting comment regarding prenuptial agreements (prenup) this week. A colleague of mine read a blog posting and we had a discussion about it. She told me that asking a spouse to sign a prenuptial agreement indicates “distrust at the start of a relationship… maybe even that you don’t love them.” I disagreed and was surprised to see how contentious this issue was. Thus, I discuss my view of prenuptial agreements here.
Caption: Flickr – All rights reserved by Orange County Divorce Attorney
(Note: the blog posting/article that sparked the contention amongst myself and the colleagues is a posting by Nathalie Boutet (family law lawyer) on her collaborative law blog: http://www.collaborativelawblog.ca/getting-married-talking-about-a-pre-nup-is-healthy — also note that a “prenuptial agreement” is the same thing as a “marriage contract”)
The blog posting that inspired this posting was in fact quite accurate in the advantages of having a prenup, some of which were the following:
- it forces partners to have difficult financial conversations early to avoid messy divorces
- it allows people to communicate their real expectations of how they want to take care of each other financially (in the good times and the bad)
- it allows for more creative solutions to their worries (while they are still in love)
As for disadvantages… well I really don’t see any if it is done right (see below).
“Balancing the Scales” – My Thoughts
The emphasis I place on the words above is where I think Nathalie was spot on. In my reading of case law, legal research, and practical work experience in family law I have found that the “underlying flaw” in traditional family law cases is a lack of communication between the parties. This underlying flaw is rarely visible on the surface as parties are often too busy fighting about property division, spousal support or access, but it all comes down to an inability of people to communicate their real interests and goals during the separation process (drawing a bit here on the collaborative law principles handed down to me by Victoria Smith and Deborah Graham of Collaborative Practice Toronto).
Let me be clear — I am not saying that collaborative practice is the answer to all of our problems here (or is better than traditional family law practices), what I am saying is that there is a need for better communication between parties in traditional family law practice. If you accept this premise, then I would propose that there is no better time for parties to talk to each other about separation than when they are still together… before the angry emotions of separation kick in.
This approach would allow people to rationally think about, plan and come up with creative solutions to their finances and how they want issues to be handled should the “worse case scenario” occur. Also, it allows parties to take a customized approach, rather than having a plan imposed on them. In many cases, a prenup can avoid the years of litigation, costs and breakdown in relationship that occur post-separation. I know what you are thinking… what about when there is a large imbalance in finances (one person just has a lot more money and there is a power imbalance)?
The imbalance in finances means that a person with a lot of money could delay litigation, pursue disclosure and alternative dispute resolution processes only to go to court after, and the same result would ensue… a breakdown of the relationship, high costs and all just because the parties refused to communicate their intentions from the get-go. The answer to the problem here is that same as with many legal issues — get proper and adequate Independent Legal Advice! If done right, there really is no disadvantage to having a prenup (Note for the Skeptics: some may argue that courts are reluctant to enforce prenups, but this just shows that there is a “right way” to do it — with adequate Independant Legal Advice prenups can be enforceable. Remember “adequate” does not mean on the day of the wedding … in case you thought you could do that).
Furthermore, a prenup is the only way for common law parties (not married) in Ontario to be able to control how property is split up. The current law in Ontario does not allow for property division to occur between common law parties… but a prenup gets around this since you can create your own, personal, customized and “creative” plans for property division.
Well now that we have established that a prenuptial agreement Just Makes Sense…. The final question is really whether the person who proposes a prenup is indicating some kind of distrust or implicitly asking their spouse whether they “love them.” You are probably eager to know my response to this…but, here I am going to resort to the famous lawyer phrase… “it depends”…
It depends on how comfortable you and your spouse are with having the “difficult conversations.” If you don’t think that you can have those conversations, do you think that having a third party (or lawyer) propose it to your spouse will be better for your relationship? The only person that knows your situation (and your spouse) best is YOU.
The one thing I will say is DO NOT leave making plans for the “worst case scenario” to the last minute… Get a prenup a month or so before the wedding (time limit isn’t set in stone)… have that “hurricane survival kit” before you walk into the storm.
Feel free to comment on your thoughts as to this topic below.
Note: This is not meant to be an exhaustive explanation, and readers are assumed to have a basic knowledge of the law being discussed. Visit my website for some background information regarding passing off should you be curious to learning more.
Disclaimer: Nothing on this website is meant to be taken as legal advice in any way, shape or form. I am not authorized to provide legal advice to anyone. If you require legal advice, I would recommend retaining counsel. All views expressed on this website are my own.
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