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    Should One have a Prenuptial Agreement?
    Posted: 2012-08-28 05:00:25

    Marriage Agreements are often referred to as Prenuptial Agreements, as they are usually made prior to marriage. In the long history of common law in western countries, the marriage agreements were not permitted by law. It is only in the last about 20 years that they became permissible inOntario. There are many countries and states where the marriage contracts are still not allowed.

    In a traditional society the roles of men and women were more defined by long standing customs and traditions. Men earned income outside the home and women looked after the family and home. In modern days women compete with men in all occupations and their emancipation has brought about drastic changes in the family life.

    The changes in modern society are compounded by a multicultural world where cross cultural marriages are becoming more common. Each brings his own or her own different tradition in the family. In a modern and rapidly changing world, what do you expect from the other spouse? How many children should the family have? Do the children go to University? What religion should they pursue? Who runs the family account or should there be separate bank accounts?

    These changes bring about a need to discuss and define the expectations of each to the other. A Marriage Agreement provides one possible answer for defining and expressing the custom made solutions for the newly weds. The problem however, is a lack of acceptance in society used to a long tradition of love as a foundation of marriage, and written and binding contracts sounds more like a business agreement than an expression of love. Women are more likely to an agreement as a damper on the expression of kindness and support they expect from men. Men also perceive it as questioning the relationship.

    Involving a lawyer for the Marriage Agreement also does not necessarily help when the lawyers’ image in society is that of a hired gun to fight your case. It is the role currently assigned to the lawyer in an adversarial system. When parties are about to get married the role of the priest appears more appropriate for the couple in romance.

    All societies have not necessarily followed the dislike of the Marriage Agreement. In the Muslim Society, for example, Marriage Agreement is common and even prescribed by the religious tradition. Many in the Muslim community living in western countries do sign up the marriage contact as a part of the marriage ritual. Such an agreement may proscribe the full rights of women given in the local laws but the religious tradition often prevails.

    Cultures and traditions do take time to change. The change towards accepting the marriage contract is likely to become the norm by sheer necessity. Roughly half the marriages inUnited Statesand a little less inCanadaterminate in divorces. The termination of marriage and love used to be acrimonious 30 years ago and today a separation is accepted more readily and that makes drafting a Separation Agreement easier.

    The loss of expectation in a separation often resulted in a court battle which sometimes fulfilled the desire to get back at the spouse and in adversarial system. It could help those of us practicing Divorce Law, but not necessarily the couple.

    The separation clauses in a Marriage Agreement can provide a ready answer to the marrying couple for issues they disagree on at the time of separation. It saves having to go to lawyer and the court. It can provide for the time period of support and caring of children in such event. It permits the spouses to get on with life and follow their next objective without getting embroiled in protracted court hearings. Watching your spouse being skillfully cross examined by your counsel to bring out all the wrong doings in the family history in an open court can and does sometimes fulfill the feeling of revenge in a broken marriage. It does not help to reconstruct the broken lives and emotions.

    The lack of acceptance for the Marriage Agreements arises partly from the role played by the lawyers and their image. Generally the lawyer of the husband will prepare the Agreement in Draft Form and the lawyer of the wife will review it. His instinct in the adversarial system is to look for possible problems in the future for his client and provide an answer. The negotiations that can result in going back and forth from the lawyer of the bride to the lawyer of the groom could dampen the blossoming love.

    Lawyers need to be more sensitive and sympathetic when dealing with family matters and as younger lawyers get trained in less confrontational methods of applying law, such as the ADR and Mediation, the tradition of not having a Marriage Agreement will gradually change to a tradition of having an Agreement. It makes sense. Lawyers can help to put the idea across that Marriage Agreement is a positive event which helps to plan the future of the marrying parties. It is somewhat akin to life insurance, to be used if necessary.

    One of the difficulties the parties perceive in writing a contract is the assumption of finality and the unchanging nature of the Agreement. Agreement is assumed to be carved in stone. It is if the parties disagree. It does not have to be if the parties agree to change it. A marrying couple can be advised that in an unpredictable future the parties should evaluate and change the Marriage Agreement whenever there are major changes taking place in their lives. If the husband or wife hit a jackpot in his or her career, the parties can change the Agreement to provide for more support in situation of separation.

    There is also a need to advise the client that the Agreement does not stop either party doing more than what is prescribed in the agreement. If the support was provided for a separated spouse for three years in an Agreement to get back on his or her feet, the Agreement does not prevent a generous spouse from providing support for a longer period.

    A positively drafted Marriage Agreement can provide well defined guidelines for the future of the new family and reduce many of the issues that usually create conflicts in a family. Instead of arguing about which religion to follow after marriage, the parties can agree in advance what religion they and children will have. It is not usual but possible to write out how many children parties agree to have and what expectation they have of the education of the children.

    Many marriages are fraught with conflicts over money. A well drawn Agreement can address such issues up front in the Marriage Agreement. For example, should the spouses have separate accounts? How will each contribute to the common budget? Many families haggle this issue during the marriage resulting in tension. Why not address the issues from the beginning?

    If the husband and wife have long professional education and are starting the family with large Student Loans it is helpful to define how the parties will deal with other’s debts during the course of the marriage. What happens when the debt is not paid off in a few years and the wife has a child? It would be far better to discuss these issues and write them in an Agreement than jostle their expectations in their daily lives.

    Popping up the question of the Marriage Agreement just before the wedding is not tactful since most people see still see the Marriage Agreement as a barrier to expression of love, and women more than men. Like the Priest’s Sunday Lessons in preparation for the marriage, the issues of the future family should be laid out in compassionately drawn Marriage Agreement well before the wedding date.

    Mr. Jay Chauhan has more than 30 years of experience practicing Commercial law, Family law, Immigration law, Wills and Estates, and Litigation. Mr. Jay Chauhan earned degrees, including a Bachelor of Science from the London School of Economics in England; a Barrister-at-Law at Lincoln's Inn in England; a Master of Economics at the Berlin University in Germany; and a Bachelor of Laws at Osgoode Hall in Ontario, Canada. He was called to the Bar in Ontario in 1972, England in 1965, and admitted as an Advocate in the State of Gujarat, India in 1982. You can learn more about Mr. Chauhan by visiting his website at
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