Outside the Box: Using the Collaborative Process for Collaborative Agreements and Marriage Contracts

By Marian Gage

When a potential client comes to me for the first time, already-drafted marriage contract in hand, asking me to read it over and sign the certificate of Independent Legal Advice (and quickly because the wedding is this Friday!) I find myself looking for the nearest exit. There are no fees that can compensate me for the potential liability and I must politely decline.

Even when there is ample time and a not-yet drafted agreement and both parties are ready and willing to make full financial disclosure I must admit marriage contracts and cohabitation agreements make me a little apprehensive. There is, whether it is real or perceived, a concern that these agreements are vulnerable to litigation to set them aside in the future if a couple separates. Even if a court upholds the agreement there is the risk that the lawyer will be named in the lawsuit. There is also the risk (inevitability?) that this happy couple, optimistically planning their lives together, must now be exposed to the unpleasantness involved in negotiating a domestic contract.

The negotiation of a marriage contract or a cohabitation agreement must be handled with greater care, taking into account that we are working with an “intact” couple, often at the beginning of their lives together as spouses. Nobody wants to rock the boat…but we have to have some difficult conversations if the negotiations are to be meaningful.

The collaborative process is well-suited to this type of negotiation for several reasons…
• Both spouses and their lawyers can work together as a team to address each person’s concerns and work through potential problems.
• Collaboratively trained lawyers and, where necessary, a neutral facilitator can work with the parties to help them talk with each other about their financial goals and interests in a way that will not appear to be adversarial.
• The parties can exchange complete and reliable financial disclosure by discussing what is required together with their lawyers (and why it is required to make the agreement reliable) and if necessary, parties can work with a neutral financial professional.
• Where estate planning is an issue we can include the estates lawyer as part of the team as opposed to sending the couple off to that lawyer at the end of the process to prepare wills “around” a marriage contract.

I would think that an agreement negotiated through the collaborative process is inherently less vulnerable to a claim to set it aside in the future as it is much less likely the agreement will have been negotiated under duress, or without appropriate disclosure, or with potential for a substantially unbalanced result.

Given the high rate of satisfaction clients have in using the collaborative process to resolve the issues that come up on separation I have been spending time working with my Collaborative Participation Agreement to tailor it a process for negotiating marriage contracts and cohabitation agreements.