Firstly, Happy New Year! Today’s topic is: Can people negotiate a “pre-nup“ (in Canada it’s called a “Marriage Contract”) or a cohabitation agreement after they’re married or living together, or does it have to be done prior to their marriage date or cohabitation date? The answer is Yes! It will surprise many of you that indeed this can be done post-marriage! To illustrate, I had a case where the party came to see me a few weeks before her marriage, requiring a Marriage Contract to be completed before the wedding date. Everyone “pushed the pedal to the metal” to get this done prior to the marriage. Needless to say, due to the very short time frame, it was extremely stressful for all – including me! The parties ultimately agreed to my recommendation that they postpone the finalizing of the marriage contract until after the wedding. That way they were able to focus on preparing for and enjoying their special day, without the added stress of negotiating a Marriage Contract before their wedding.
As I told my client, a possible downside was that, once parties are married, the incentive to negotiate a marriage contract is lessened. Often it is one party – for example Joe (real names not used here) – who has the income, assets, and perhaps children of a previous relationship – who wants the Marriage Contract more than the other party – Sally. Once the parties are married, Joe can no longer say to Sally: “We can’t marry unless you sign this marriage contract!”
My client insisted to me that she and her fiancé had complete trust in each other and that therefore this would not be an issue for them.
Indeed, there can be benefits to doing a Marriage Contract after the wedding date. In the above example, Joe saying to Sally: “I will only marry you if you sign this marriage contract” – could be construed (at a later date) as getting Sally to sign under pressure. This could be a factor in Sally, at a later date, potentially setting aside the Marriage Contract, which is what Joe doesn’t want!
I had a client who came to see me 14 years after the parties had married, as his wife wanted an Agreement and he was fine with doing it. It was important that I handled his case with great sensitivity and diplomacy, due to the sensitive nature of the circumstances and so as to not interrupt a perfectly fine long-term marriage!
So what’s a good way to negotiate a marriage contract? Mediation can be an excellent process for parties to negotiate their Marriage Contract, whether before or after the marriage. The same applies to negotiating Cohabitation Agreements. When I mediate these Agreements, I am sensitive to the often delicate situation, and employ the mediation skills of reframing, active listening, and empathy, while also dealing with the hard legal issues.
Mediation provides a positive forum which can fulfill both these aspects. This process allows the parties to negotiate a solid and binding Agreement and continue their happy married lives together, with the knowledge that, just in case – given the realities of life today – they each have a protection should things not go as planned.
As always, please feel free to pass my article on to friends or colleagues who are considering taking the big step of marriage or cohabitation, or to those already married and interested in negotiating a Marriage Contract. I’m happy to discuss my mediation services with them.
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
© Anne E. Freed, January, 2020