My husband and I entered into a prenuptial agreement based on a few odd aspects of our relationship: my mother had died and I had inherited a large number of things I wanted to keep in my possession should it not work out; I had potential intellectual property issues, as did he; and he had potential future assets in the form of licensing/royalties to his artwork and plans to eventually start a small business. Being that we are fair and rational people, we had one drawn up that would protect the both of us in an amicable manner if we decided to split up. We have no plans to do so, but, as others have said, we can’t predict the future.
Personally, I think that a lot of the people who are responding negatively to the idea of a prenuptial agreement are using more personal emotions than reasoning to reject the idea. It’s not planning a divorce, and it’s not out to screw each other-- like any other “insurance”, it’s there to try to make things easier should something awful happen. It’s not about lack of trust either, but more about spelling out fair terms for separation in the event it is needed. Having grown up as the child of parents who divorced just before my teenage years, I see that sometimes things don’t work out forever, even if they do for a long time-- my parents were married for 27 years before they got divorced, and remained relatively amicable afterward. It doesn’t mean that it was a complete failure, but that the two people involved no longer are the same people who entered the relationship and are no longer compatible. People grow and change and there’s no guarantee that it will continue to work out. Shit happens, but that doesn’t mean that preparing for the worst means you’re expecting the worst. IMO, a prenup is “preparing for the worst and expecting the best”.
Yup. If a couple just wants to live together forever because they are so much in love, why demean the relationship by entering into the legal contract of marriage?
Definitely think prenups are good ideas for people with resources–or who plan to have resources.
A friend married an heir to one of our city’s major fortunes. But she had to wait because the previous wife (long out of the picture before he met my friend) was asking for millions. After a rather short marriage. Alas, my friend’s marriage didn’t last; he left her for another guy. But she received a tidy sum, per the PreNup. It made the legal details of a sad situation a bit easier.
Though I’m not by any means of the opinion that there is anything mean about a pre-nup, I can see the difference. It’s a matter of degree, arguably of kind. Certainly marriage is a contract, but there is no necessity to have one’s independant legal advisors haggle over the terms - it is all established for you by statute. The process of obtaining truly independant legal advice and, of necessity, treating your future mate adversarily (unneccesary with the more usual marriage contract) isn’t very romantic.
It is sort of like that dating thread about folks who want to do a background check on their date’s credit rating. Sure, all “dating” is a process of mutual screening in a way, but going from that to using a credit rating agency or hiring a PI to check out your date’s financials is … a difference in degree that arguably amounts to a difference in kind. It isn’t terribly romantic, to say the least.
Edit: I do not mean to equate the two, merely to show a similarity for the purpose of discussion. The difference is of course a true pre-nup is mutually agreed, unlike checking someone’s credit.
And for that reason, I’m on opposite sides of the two threads!
I still see the difference as degree but not kind when it comes to a pre-nup. Marriage laws create benefits and obligations, though they aren’t personalized. It’s rather like the difference between a license plate and a personalized license plate.
To my mind, it’s a matter of process. You get married, you sign a paper as part of the ceremony it is true, but there is none of that “I’ll have my solicitor run through these contract terms and get back to your solicitor with their objections” type stuff.
The latter of necessity sets up a certain amount of “adversarial-ness” (is that a word? Probably not!) that doesn’t exist in the former; indeed it is a necessary part, because without testing by way of independant legal advice, a pre-nup isn’t valid.
Now far be it for me to say that everything isn’t better with lawyers! I’m a lawyer myself - the more folks need lawyers, the better. Only, though we look cute in our suits and all, involving us doesn’t seem to blend all that well with romance.
Oh come on! I think it’s romantic as hell. “Honey, we have a candlelight dinner, and nice music, and champagne, and oh here’s Malthus, and filet mignon…”
I guess from where I sit, people thinking seriously about just what it is they’re signing is a good thing. Romance is about romance. Love is about love. Marriage is about both of those things, plus a whole host of legal issues that I’d rather people didn’t gloss over.
In other words, I think most people could afford to take some time off from their romantic sighing and think about the difficult stuff.
I think this is an excellent way of looking at a pre-nuptial agreement. As you say, marriage is indeed a contract; most people just don’t look at it that way, and as we see in this thread, there are a lot of people who feel that introducing a pre-nup is the first legal intrusion in their marriage, when in fact it is not.
My fiance and I are planning to draw up a pre-nup before our wedding. He’s been married before, briefly, and although I’ve never been married, my mom has been married and divorced three times now. I hope that our marriage lasts until one of us dies, but who knows? If we do get divorced, I think it will probably be amicable, but that will largely depend on the reasons for the divorce. If one or both of us turns into a raging asshole, we want to have something in place that will force us to be fair about splitting up our assets and figuring out who the kids live with.
“Honey” has to have their lawyer, too, don’t forget. Set that table for four and order another bottle!
Sure, I can see that. Thing is, that those newlyweds sighing and mooning over wuuuv without giving the slightest thought to divorce are (in most jurisdictions) signing into a pretty sophisticated legal arrangement designed to take care of all that stuff: the statutory scheme. For most people, it does a reasonable job of it - not that this stops everyone (or indeed anyone) from complaining, of course!
Seeking out a pre-nup is essentially telling the other person that the allocation designed by legislation isn’t good enough. There may be good reasons for that, in special cases: owning a business, a pre-owned home, family cottage, what have you. For some people, it immediately raises the suspicion: why? Why isn’t the legsilative scheme ‘good enough’?
Splitting up is more or less a zero sum game: what’s ‘good’ for me isn’t ‘good’ for you, when it comes to support payments and division of family property (child support is usually off the table, as the courts will not permit interference there). So the message isn’t simply that ‘we are thinking seriously about the future and about legal issues that may arise’, it is also ‘I have looked into the laws here, I don’t think the default laws here give me a good enough deal and I want a better one - at your expense’.
That isn’t necessarily the most … romantic of all messages to send. Especially when it is said with lawyers.
I used to find the idea of a prenuptial agreement offensive and anti-romantic but I’ve changed my mind over the years. If I marry someone thinking I’ll love them forever and we manage to fuck it up, I’m going to be devastated. There’s no reason to make a bad situation worse by opening myself up to the loss of possessions or financial ruin.
That being said, I know I would feel at least a little bit hurt if asked to sign one and there are certain conditions I would never agree to.
Just out of curiosity, didn’t you feel the same with your previous marriage and your other long-term relationship? For example, when you got married the first time, were you thinking “This may or may not last, there’s a good chance I’ll get a divorce?”
The Courts will not uphold a pre-nup if it is unfair when applied, but here we get into what “fair” means. When it comes to pre-nups at trigger date, fair tends to be interpreted as unconsicionable rather than simple fairness.
For example, when it comes to property, have a look at the SCC’s decision in Hartshorne (from BC where fairness is considered more than it is in Ontario), in which the Court said that there must be fairness at the time of distribution, but went on to say that the Court should respect private interests and be reluctant to second-guess the arrangement on which the parties expected to rely.
When it comes to spousal support, have a look at the SCC’s decision in Miglin, in which the Court said that it should look at whether the result is what the pre-nup originally intended, and that it should be loathe to interfere with a pre-existing agreement unless it the Court is convinced that the agreement does not comply substantially with the overall objectives of the legislation.
So what do the Courts consider to be fair these days? IMHO, Courts at this time are reluctant to toss properly made pre-nup spousal support terms and are very reluctant to toss properly made pre-nup property terms, unless the result has been unconscionable. To put a face to it, if a couple properly made a pre-nup that said there would be no property division and no spousal support, and after a decade or so of life proceeding normally for them they separated, then even if the result was such that one was left with a middling job and few assets, while the other was left with a high paying job and significant assets, the Court would probably uphold the agreement. If, however, life did not proceed normally for them, resulting in one of them being debilitated during the marriage, then the Court would probably toss the part or all of the agreement.
Thanks, that’s quite helpful, though it does raise a question in my mind.
What would happen in what must still be a reasonably common scenario - two partners have beginning-type jobs going in to a marriage, no property, sign a pre-nup (with all the lawyerly fix’n’s) that says they are both equal and stuff and that neither wants the other’s assets or cash, then one goes on to have a professional-type career and the other becomes a home-maker with no job but three kids? Does she go to the curb with nothing except child support, just like the (properly made, objectively fair when signed) pre-nup says? Or does becomming a home-maker count as “debilitated” and the result “unconcionable”?
I don’t think that most folks think much about this, for they tend to just truck along with social and religious convention without giving a great deal of thought to what the legal aspect of marriage actually means. But even cohabiting couples should consider making domestic contracts, for just as there is a body of law that applies to failed marriages, there is a body of law that applies to failed conjugal relationships outside of marriage.
To me, marriage = I will fight to make this relationship work until one or both of us is dead or miserable. I don’t think a marriage has to last forever for it to “work.”
No, I refuse to make or accept false promises.
I absolutely trust my fiance. Plenty of stories start out with two people in love placing absolute faith in one another, and end with two people who can’t stand each other trying to screw each other over.
I expect that a Court would find the outcome to be unconscionable and award spousal support and and some sort of division of property on the basis that the outcome did not reflect the original intention of the prenup (each expecting to be self-sufficient), and was way out of line when compared to the self-sufficiency goal of the Divorce Act. About the only way a pre-nup would survive in circumstances that severe would be if the properly made pre-nup actually addressed the posibility of a party giving up a career and raising kids and still not wanting spousal support.
