Lots to Love about a Marriage Contract

By Nigel Macleod

Two decades ago, few if any family law practitioners predicted marriage contracts would become the new norm in getting hitched. Maybe it’s the impact of social media influencers or the spectacle of high-profile divorce battles playing out online, but today marriage plans often include a visit to the neighbourhood mediation office. There are many reasons this is a good idea.

Here’s some information about marriage contracts from a professional family mediator.  After reading, you may decide to add one more box to your marriage To Do list.

Don’t forget the prenup.

When you look into a marriage contract as part of your pre-wedding preparation, you’re actually sharing in an important planning exercise for your future. By tackling the intangible and unpredictable “what ifs” in life, you’re also problem-solving as a couple, strengthening your communication and honouring your commitment to do right by each other. After all, taking on life together is the crux of your decision to wed in the first place.

Before you tie the knot, it’s realistic to acknowledge that a significant minority (over 35 per cent) of couples find themselves dealing with separation and divorce. In many more cases there is the death of a spouse. Do you really want to leave it to the courts to figure out how to unravel your life, after you’ve tied the knot? If separation becomes a reality, why not make it easier and less painful for both of you to move on cooperatively, even amicably.

That’s where marriage contracts come in. Mediation provides a safe place where you can discuss and design a better slipknot together.

 As Drs. Bradberry and Grieves write in Emotional Intelligence 2.0:

 “When you allow yourself to anticipate change—and understand your options if changes occur—you prevent yourself from getting bogged down by strong emotions like shock, surprise, fear and disappointment when changes actually happen. While you’re still likely to experience those negative emotions, your acceptance that change is an inevitable part of life enables you to focus and think rationally, which is critical to making the most out of an unlikely, unwanted or otherwise unforeseen situation.”

 The law in Ontario as it relates to marriage, spousal relationships, children and finances is grounded in the recognition of informed decision-making in the context of a good and fair structure. It also takes into consideration the responsibility for dependents in family relations, especially when there are children. There is clear family law guidance for problem solving and planning. As family law practitioners, we often refer to that framework as the  “law model.”

 ​Generally speaking, parties craft their own settlement—whether before the wedding ceremony (via a prenuptial agreement), during the course of the marriage or separation, in litigation conferences, or outside the judge’s trial chambers. A durable marriage contract serves as the foundation for a straightforward settlement, and helps you avoid the negative consequences of an adversarial system.

As you can imagine, the earlier you do the problem solving, the better the outcome. When a married couple haven’t worked through a marriage contract together, and their divorce case gets to court, all too often adversarial conduct and positional bargaining arise. Financial costs grow while goodwill diminishes. In mediation we strive to eliminate conflict; early collaboration is our fundamental recommendation.

It’s about the details, like who gets the house and who gets the friends.

Interests-based negotiation is the most effective way to plan out a joint strategy that respects each individual’s perspective and goals. This is the classic win-win dynamic and we work diligently to balance the conversation so that both participants are heard by the other person.

We also ensure mediation participants are supported by reliable legal information, with full and fair disclosure, by enlisting other professional resources, notably independent legal advice. Most lawyers are fully supportive of their clients’ proactive and preventative intentions while respecting the non-adversarial tone of pre-nuptial discussions. The informed choice of the best lawyer for you and the mediation process are important for cooperative strategic planning.

A wide range of subjects may be addressed in mediation. The two major subjects for discussion always include property and spousal support.  Since the pre-existing principal residence becomes the matrimonial home in a marriage, as stipulated by our Family Law Act, it’s a key consideration. However, people benefit from the clear financial choices revealed in mediation.

Inheritances, tax and investment planning are usually discussed, and, in many cases, our mediation clients are encouraged to explore other professional resources to provide additional financial planning in substantive detail.
At all times however, a professional family mediator must extend clients’ ethical protections beyond impartiality to neutrality. This means intervention must safeguard both clients throughout the mediation process and within the larger context of the marketplace.
From the initial assessment to the completed agreement, couples are assisted by the mediator’s recommendations, particularly with respect to how discussions and sessions are organized. We know people benefit from structure in marital planning and decision-making. We call this concept of individual empowerment self-determination and this constitutes the mediator’s prime directive.

Good plan. Let’s do it!

The practice of mediation in marriage contracts is highly specialized. The development of such specialization may be rooted in years of experience, but to truly meet the needs of all Canadians, a “best practices” mediator must respect and understand different family dynamics, notably including our LGBT community. We strive to provide a better mediation process that works effectively to assist all couples in sorting out significant matters consistent with their joy and happiness in forging a new future, for better or worse.

Nigel Macleod, LL.B., is an experienced professional family mediator and an accredited family mediator with the Ontario Association for Family Mediation, the Association of Conflict Resolution (Advanced Practitioner Status), and the Academy of Professional Family Mediators (Advanced Practitioner Status). He is the director of the Divorce Resolution Chambers of AGB Lawyers, providing a family law focus in mediation and legal services to the Ottawa region.

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