The love of your life has asked you to sign a cohabitation agreement (or a premarital or prenuptial agreement) and you feel that they do not trust you. You are right.
That nagging feeling is the voice of reason telling you to choose reason over passion. Your first step is to find a lawyer whom you can trust to give you the deeply honest advice you need. Expect the advice to be blunt.
These are the things you must consider:
The Legal System is There to Help
The Family Law Act, Divorce Act and Wills and Estates Succession Act create a multilayered set of laws, the purpose of which is to achieve just outcomes with regard to property and income upon separation, divorce or death. The agreement will deny you access to this system.
Your wealth should grow together
Without the agreement you will most likely equally share what is accrued during the relationship including the increase in value of assets owned prior to the relationship. This is fair because your relationship should be enriching for both partners.
The Benefit is Completely One-Sided
If you are the financially weaker spouse, there is obviously no financial benefit to you signing the agreement. What is less obvious however, is that signing an agreement is highly unlikely to positively impact your relationship.
Negotiations are traumatic
When you negotiate a marriage or cohab agreement the same tacit understanding applies as when two representatives of two businesses negotiate the terms of their engagement when two bus i.e. that each of you is selfishly driven by your own personal profit and must protect yourself from the other. Sitting down with a lawyer to discuss the ways in which your loved one believes you will attempt to profit from their relationship with you is an inherently traumatic experience.
It negates the point of marriage.
The traditional legal understanding of marriage was a total union under which two people essentially became one legal entity, the idea being that your individual interests had been subsumed into the greater unified interests of the couple. This standard of selflessness is perhaps more of an ideal to aim for than a realistic may not always be entirely realistic, party is to enrich themselves at the others expense.
Power Imbalances prevent true intimacy
In any relationship, the level of intimacy enjoyed is directly correlated with each participants propensity to be vulnerable and “let the other person in”. True vulnerability, and thus true intimacy, is only possible when each party believes themselves to be an equally secure and valued partner in the relationship. In entering into an agreement that seeks to entrench rather than erode imbalances within the relationship then, you are limiting your capacity for true intimacy.
By formally structuring the relationship so that one spouse is more bought into the relationship than the other, you are creating the perfect conditions for what is known as a Demand-Withdraw pattern, whereby one party demands change and the other, rather the engaging with their partners concerns, ignores them and gradually withdraws from the relationship. This dynamic ensures that minor marital issues, rather than being dealt with swiftly, are left to snowball until they pose existential threats to your relationship.
People change… and not always for the best
As loving as your spouse is now, there is no guarantee that they will always be that way. Addiction, trauma and mental illness are capable of having transformative effects on a person’s psyche and nobody is immune to their effects. There are some circumstances wherein, for the sake of your own safety, you may need to remove yourself, partly or wholly from the shared life you have created with your partner. Entering into the agreement could amount to signing away the financial independence that can enable you to escape a toxic environment.
Your standard of living may change
For many people, there will be a considerable difference between the standard of living they enjoy at point of entering a relationship and when the relationship breaks down 10 or 20 years later. You should not be singly punished from the breakdown of a two-way relationship.
Lost Career Opportunities
Spousal support may help you recover from sacrifices you may have made in the relationship such as leaving your career to have children or moving away to support a spouse’s career.
While you may be far from retirement as you read this, you will eventually need to support yourself after retirement. Do not agree to give-up the retirement income ( Pensions and RRSP’s ) that might make the difference between a comfortable retirement or a retirement in poverty.
The agreement may alter the rights you have on the death of your partner or spouse. Do not give up the rights you otherwise have so that should you suffer such a loss, at least your financial situation will not be made worse by an unfair distribution of your deceased partner’s assets.
Your economic circumstances and those of your partner are liable to change dramatically over time. If you commit to a fixed outcome based on your current circumstances, you may be denying yourself economic justice in the future.
Agreement is Final
The agreement will be final and you cannot rely on your partner agreeing to vary the terms at a later date. Promises made outside the agreement are unenforceable. Your partner may promise to “take care of you” and this promise will mean nothing in the end. It is unenforceable.