Let’s face it, most people deciding to spend their lives together aren’t planning to separate. However, we don’t plan to have our house go up in flames when we buy insurance either. We plan for the worst and hope for the best.
The vast majority of people who separate do not have marriage contracts or cohabitation agreements. For some, that’s absolutely fine, as the default law provides a predictable and balanced outcome.
However, there are many situations when the default law doesn’t meet the needs of the couple. For example, if one person is putting the majority of the funds into the home that the couple will live in. In that case, it makes good sense to have a marriage contract, to establish what will happen with those funds if there is a separation. Not having an agreement can be quite costly.
Raising the issue of a marriage contract can be challenging. It’s not at all romantic. It’s even worse than thinking about preparing a will (which many people also avoid). To some, it signals a complete lack of trust in the relationship.
However, it can be seen as a good opportunity to establish the expectations for the relationship, and to give a level of comfort so that the couple can put any concerns about “what if” aside, and just be together.
Mediation is extremely well-suited to marriage contracts, because the whole idea is to have respectful, well-informed discussions to help in problem-solving. The couple crafts, together with the mediator’s assistance, their mutual expectations. Compare this to one person going to a lawyer and having that lawyer prepare an agreement to be given to the other person. There’s no cooperation, or joint discussion of interests. In fact, receiving correspondence from a lawyer can be unpleasant, no matter how the lawyer tries to be non-threatening.
If a couple works in mediation to come to the terms of a cohabitation agreement or marriage contract, Lawyers would still be involved in reviewing or preparing the draft, based on the decisions made in mediation, and providing independent legal advice to the parties. However, the mediator can help establish expectations and smooth the way for this review process.
Mediation is a much less threatening way than the traditional legal approach to approach the thorny issue of a cohabitation agreement or marriage contract. And then, the couple can put the worry out of their minds, and file the contract with their insurance policy, just in case.