Viewing your marriage through the eyes of the law
By Emma Costain, B.A., J.D.
Picture this: it’s your wedding day. You and your future spouse are at the altar, gazing into each other’s eyes, while your friends and family look on. Of all the thoughts racing through your head as you recite your vows to each other, the legal implications of saying “I do” are probably not among them.
And why would they be? Your wedding is the culmination of months of planning. Preparing for such an important event is an exciting, time-consuming, and stressful process. The big day itself should be a celebration of a new union; the last thing on your mind should be the legal consequences of a possible separation down the road.
But before you push those thoughts away completely, take a moment to reflect on your understanding of what it means, legally speaking, to be married. In my experience, it’s something that few people consider—until they find themselves contemplating separation. Marriage is an economic partnership in the eyes of the law.
As such, the breakdown of a marriage comes with a host of financial consequences, including the division of property between spouses (also known as equalization) and the
potential for spousal support.
When married spouses separate, the law provides for certain automatic rights and obligations; no one asks you whether you want to opt in to this system ahead of time. So, it’s important to be aware of the legal regime in order to assess whether you’d like to opt out (in whole or in part) in advance. You can opt out of the automatic regime by entering into a marriage contract. You’ve probably heard this referred to as a pre-nuptial agreement, although you can enter into one before or after your wedding.
Of course, before you decide to opt out, you need to understand what you’re opting out of. You then need to consider if that system works for you, and if not, what changes should be made. Think about your financial expectations—do they match up with the default, one-size-fits-all regime in place? And how do your intentions compare to those of your spouse?
There are a lot of misconceptions about marriage contracts. They’re not just for the wealthy—and even if your assets are modest right now, they may not be in a few years. They’re also not a sign that the marriage isn’t going to last, or that one spouse is having second thoughts about the relationship.
Raising the topic of entering into a marriage contract with your spouse shouldn’t be taken as an insult. It might be an uncomfortable discussion to have, but, time and time again, it’s one that my family law clients say they wish they’d had. And, having this conversation now will help ensure that both you and your spouse are on the same page, and hopefully avoid significant misunderstandings in the future.
You can think about it as two different processes: wedding planning, and marriage planning. Admittedly, the latter is less exciting—but it’s a process of reflecting on how you and your spouse intend to structure your life together, and what steps you may want to take now to protect certain interests moving forward.
Marriage contracts come in all different shapes and sizes. You can choose to completely waive your right to certain parts of the automatic regime, like the division of property or spousal support, or you can modify your entitlements by agreeing to exclude certain assets or income streams. You can also include provisions for dispute resolution that don’t involve having to go to court.
So, talk to your spouse, do some research, and consider reaching out to a family law lawyer for an initial consultation. If you’re serious about entering into a marriage contract, I wouldn’t recommend a DIY approach. It might save you money now, but, drafting an agreement without a professional can lead to a lot more financial hardship in the long run.
Exchanging full financial disclosure with your spouse is the first step to creating a solid marriage contract. Having all the information on the table will help you decide what kinds of provisions should be included. You’ll also want both of you to obtain independent legal advice: otherwise, theres a risk the agreement could be set aside if challenged in the future. You can have one lawyer draft the marriage contract, but the same lawyer cannot give legal advice to both spouses. Consulting with your respective lawyers will ensure you understand the implications of what you’re agreeing to or signing away.
Saying “yes” to marriage is a big commitment, financially and otherwise. Taking the time to make yourself fully informed about the law now, can avoid a lot of problems down the road.
That way, when your wedding day comes, you can focus on looking towards a new beginning, without worrying about what could happen if things were to end.
Emma Costain is an associate lawyer with the Ottawa law firm Nelligan O’Brien Payne LLP (nelliganlaw.ca). She practices in the areas of Family Law.
