This is the final article of a three-part series. In the first article, we introduced the importance of cohabitation agreements and marriage contracts. In the second article, we provided a general summary of the differences in the law between married and common law spouses to further demonstrate the ways that a cohabitation agreement or marriage contract can be useful. We would like to conclude this series with a review of the process to create a marriage contract or cohabitation agreement.
Approaching the subject with your partner
Approaching the subject can sometimes be the hardest part. It is understandably difficult to talk about what will happen if your relationship ends with the person you plan to move in with or marry.
Instead of focusing on the potential for a breakup, focus on the mutual care and respect you have for one another as the basis for the conversation. These agreements can provide peace of mind throughout the relationship and will hopefully never be used. However, if things don’t go according to plan, these agreements can reduce uncertainty and provide a more dignified exit to honour the mutual care and respect upon which the agreement was initially created.
When to start the process
You should approach the subject with your partner well before moving in together or getting married to allow both of you enough time to discuss, reflect, and comfortably reach an agreement. There is also the risk that agreements signed under duress may be set aside by a judge if challenged after the fact. Start the process early so you can focus on the move or the wedding without this proverbial elephant in the room.
How to start the process
If you are unsure about the law or your options, you may find it helpful to schedule a legal consultation with a family lawyer to get some answers that can help you in whatever process you choose.
When you start the conversation with your partner about a cohabitation agreement or marriage contract, you may both decide to talk through it together on your own, at least to start.
If you and your partner are completely on the same page about the terms for the cohabitation agreement or marriage contract, you may agree to have one of you retain a lawyer to draft the agreement and the other can retain a lawyer to review it. You will each receive independent legal advice from your respective lawyers and sign once everyone is ready.
In our experience, it can make the process more difficult if one party hires a lawyer to draft the agreement based on preliminary discussions or without any input from the other party. The other party may feel as though the agreement does not reflect what they understood to be the agreement, or worse, catches them completely off guard. As you can imagine, the process may get off on the wrong foot and it can be a challenge to get back on track.
Other times, couples may be completely aligned on the “big picture” items and are just unsure about whether there are items they have not yet considered. They are perfectly capable of working through these items if they had the appropriate forum and information.
An alternative to the traditional legal approach is to attend mediation. Many couples don’t think of mediation when they think of cohabitation agreements or marriage contracts, but the mediation process is actually very well-designed for these agreements.
In mediation, we guide our clients through different options in a respectful, creative, and cost-effective manner, while managing a range of communication styles and challenges.
You will collaborate with your partner and a third party professional to craft an agreement that meets your mutual expectations. It is a less formal and generally more comfortable process to have these difficult but important conversations. Mediated agreements are more likely to be stronger and longer lasting agreements because you worked together to build it.
In the end, if you reach an agreement, we can prepare the draft document for you. You will then take the draft document to your own lawyers to review and ultimately sign if everyone is ready to finalize. We can provide you with referrals if needed.
What happens after you sign? Put the agreement in a safe place, just like you would an insurance policy, and focus on the new and exciting adventures that lie ahead with your partner.
This blog is intended as general information and not legal advice. Specific questions regarding your own circumstances should be addressed with a family lawyer.
Our mediators are experienced family lawyers and we are here to help. If you need assistance with a cohabitation agreement or marriage contract, or are in the process of separating from your spouse or considering separation, click here to schedule a free Zoom call with one of our mediators to learn more about our services and to answer any questions you may have about the process of mediation.