Continuing to Not Fulfill Agreements in Marraige
Can Vet J. 2003 Jan; 44(1): 83–86.
Affairs of the heart — Marriage contracts for professionals
Veterinarians should be aware of the issues with which marriage contracts have been developed to date. Clearly, the decision to enter into such a contract is highly personal and influenced by your specific situation and values. Marriage contracts are just one of several legal tools that can be used to address your specific needs. This article is not intended to replace legal advice, which, by necessity, is dependent on the specific facts of every case.
You and your soul mate are contemplating marriage or cohabiting. Perhaps the most compelling argument for a marriage contract is simply that, at this point in your relationship, when your hearts are most open, you should agree on how you will treat each other, should you ever decide to go your separate ways.
A cohabitation agreement is ideal for couples choosing simply to live together, rather than marry. Yet the breakup of so called "common law" relationships can be just as devastating as that of a traditional marriage, thus making any such agreement equally important. The common perception that, after 3 years of cohabitation, a common law relationship bestows both the rights and responsibilities of marriage is wrong. Statuary rights to claims in division of property are given to married persons only.
Claims to ownership of assets in common law relationships are based, in law, on trust principles rather than property rights. Consequently, if a common law partner challenges your ownership rights, you have the burden of establishing the framework for your rights before the courts, they are not protected by statute as they are in marriages.
With respect to marriage contracts, many people approach a lawyer a few weeks before their marriage wanting a simple marriage contract; but, after all the options have been explained, they find that a few weeks does not allow sufficient time to complete the agreement. Unfortunately, marriage contracts tend to be more complicated and take more time to work out than most people expect.
What a marriage contract can accomplish
There is no such thing as a "standard marriage contract." A marriage contract is best tailored to the needs and wishes of the parties. Marriage contracts can deal with very discreet matters, such as only the disposition of a professional practice, or be all-encompassing and deal with all aspects of property and support. The most common form of agreement is the "what's mine and what's yours agreement," where, if the couple separate, ownership of property will govern division of property. So, if the parties want to share the value of any property on separation, they simply put it in joint names. Section 52 of Ontario's Family Law Act sets out what can be included in a marriage contract.
"A man and woman who are married to each other, or intend to marry, may enter into an agreement with respect to the rights and obligations under the marriage, or on separation, annulment, or dissolution of the marriage on death, including:
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Ownership in or division of property (aside from the matrimonial home discussed below);
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Support obligations for spouses only (not children);
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Right to direct education and moral training of the children to some extent;
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Any other matter in the settlement of their affairs."
Marriage contracts are a special form of contract whereby a duty of good faith is placed on both parties during negotiations. Thus, a key necessity of marriage contracts is financial disclosure. Your partner must be told about all your income, assets, debts, and liabilities, at the time of the agreement. People often do not like discussing their financial affairs, because, in doing so, it "feels" too much like a commercial transaction and not a marriage contract. However, failure to disclose can make the agreement voidable at the option of the other partner.
What a marriage contract cannot accomplish
Dealing with issues surrounding young children can be the most emotionally difficult and painful aspect of divorce. The right to direct education and moral training of the children can be agreed to in a marriage contract. However, it is important to remember that you cannot deal with such issues as custody of, support for, and access to children in a marriage contract.
Where the family resides is the "matrimonial home," and it occupies a special position in family law. It is usually the single item of greatest value owned by either or both spouses during their relationship. Typically, couples tend to view it as an asset belonging to both, at least while the relationship is ongoing. But the matrimonial home is more than a valuable asset, it is the focal point of family life, and family members often develop deep emotional attachments to it. Further, the right to occupy the matrimonial home satisfies a basic human need, namely, accommodation. If young children are involved, they have schooling, neighborhood, and friendship ties. These ties are particularly important during family break-up, as frequently it occurs at a time in the child's life when the child needs continuity and stability. In order to reflect the importance of the matrimonial home, current laws are not governed by reference to ownership alone. Thus, one of the most important exceptions to a marriage contract is that it cannot be used to limit certain rights in the matrimonial home. You cannot, for example, waiver your rights to possession of the matrimonial home.
However, this exception does not mean that one of a couple cannot waive a right to equalization of the value of a matrimonial home that one of them owns on the date of marriage. Furthermore, people often deal with sale and possession of the matrimonial home in marriage contracts and ask the court to follow their expression of intent.
For professionals, it is worthwhile to note that the courts have ruled that contracts of employment, degrees, and licences should not be considered proprietary items capable of division for the purpose of equalizing family assets.
Where marriage contracts are especially important
In reality, parties usually enter into a marriage contract when they are concerned about protecting the interests of third parties, such as practice partners or children from former marriages. A party who owns a house on the date of the marriage may want a marriage contract, since, without one, the other party would get one half of the value of the house on separation, if they both occupied it as the matrimonial home.
Often people who own a number of assets on the date of marriage want a marriage contract simply to confirm what each party owns at the date of marriage and the value of such assets. This eliminates a lot of problems years down the road, if the couple separate. Each partner will know the value of the property that each brought into the marriage and that this will be taken into consideration should they split.
Typically, people with significant assets, such as a professional practice, or who are entering a second marriage want a marriage contract that clearly sets out their property rights on death and will prevent their children from starting a court action to get more from the other spouse than is provided in the parent's will. Since every marriage (even the successful ones) will come to an end in one of 2 ways (separation or death) and since issues of family law arise in both scenarios, couples with significant assets have good reason to worry about the family law implications of their remarriage.
Strategies for exploring these issues
Lawyers are not experts in affairs of the heart, so it is not unheard of for marriage counsellors and other professionals to be involved in helping a couple to decide if a marriage contract is right for them. For some, a marriage contract may not be right in their current situation, but it may be useful to them sometime in the future.
Symbols express ideas and feelings. A marriage contract for some symbolizes the rational ability of a couple to have a business partnership. For others, marriage contracts symbolize betrayal, lack of trust, or insecurity. Symbols are the emotional meaning and interpretation with which we see the world. To be meaningful, any framework for discussing marriage contracts must acknowledge the importance of symbols and incorporate them as an integral component of those discussions.
One suggested framework for discussing marriage contracts is, first, to know your own and your future spouses' personal values and, second, to decide what outcome you both can be comfortable with, before attempting to work out these issues. For example, if you value relationships first and property second, you may decide not to have a marriage contract. Or, if you discover that your future spouse would be terribly offended if you were to discuss property issues surrounding a hypothetical marriage breakdown, you may also decide not to have a marriage contact. On the other hand, you may decide that the reasons why you, as a professional, should consider a marriage contract, such as concerns over protecting your practice assets or partnership issues, outweigh the reasons not to have a contract.
While a marriage contract may not be right for your situation, exploring the ideas outlined might suggest legal or business issues that you should clear up before you get married. For example, if you are getting married and choose to enter into a marriage contract, it is a good idea to keep an ownership file, as proof of any valuable assets you own on the date of the marriage. While this information is readily available today, years down the road, it is often impossible to obtain.
Perhaps the simplest advice for broaching this topic is to hand to your significant other a copy of this article and ask him or her to read it, and then to let you know what he or she thinks.
Footnotes
Veterinarians are not immune from having personal issues affect their professional lives and businesses. Veterinarians are not immune from marital difficulties that may affect their businesses and assets, and put their futures in the hands of third parties. In the attached article, written by Brian Ausman DVM, MBA, LLB, the role of marriage contracts, legal sound and mutually fair documents that can protect veterinarian and spouse, "just in case," is discussed. Please note that this article has been written from the perspective of the laws in Ontario but the issues raised have value for any Canadian professional.
Articles from The Canadian Veterinary Journal are provided here courtesy of Canadian Veterinary Medical Association
Source: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC340027/
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