The Pros and Cons of Forced Marriage in Canada
When women in underdeveloped non-western societies are forced to become spouses, it is decried as a human rights violation. This I agree with. When men in developed western countries are forced to become spouses, it is celebrated as progress [1] , as in the recent 2013 British Columbia Family Law. This I disagree with [2].
When change is involuntarily thrust upon a person, the negative consequences of that change are almost immediately apparent. But, almost no change is 100% bad. (The colloquial expression of this is "it is an ill wind that blows no good.") One often has to carefully analyze the change and exploit any benefits resulting from the change.
Before proceeding to give my analysis of how capable men with assets can exploit the new law to protect themselves, I want to explicitly acknowledge that I am not a Canadian lawyer, not even a lawyer, and not even a Canadian. Because of this, I request input from Canadians about what I have right and what I have wrong about British Columbia Family Law.
I have given reasons [3] why almost any successful American man should require a written marriage contract that is mutually fair and agreeable. Default Canadian marriage law (as I understand it) is even more mercenary than American law. For example, though you must be very knowledgeable and very careful about exactly how to handle your premarital assets, and you must keep excellent records to trace those assets, default California law (generally) permits you to keep those assets and any increase in value of those assets. It is my understanding that Canadian law splits the increase in value of those assets. For example, suppose one has a stock mutual fund worth 1 million dollars when he gets married and the mutual fund increases in value to 5 million dollars. Default California law seems to recognize that inasmuch as the spouse did not contribute to the increase in value of the mutual fund in any way, the spouse is not entitled to any of the increase. In the default Canadian law, despite having contributed absolutely nothing, the spouse would be entitled to half the increase, that is 2 million dollars. Furthermore, if the asset loses value, the spouse does not share in the loss. Maybe Canadians view this differently, but for the wife this seems like flipping a coin with a "heads I win, tails we are even" rule?
A financially successful man in America, can usually cohabit for some time before a women gets tired of cohabiting and wants to get married. Even if a successful man agrees in principle to get married, it is often the case the woman is opposed to actually stating in a prenuptial contract what she thinks are fair terms. I think there are at least four reasons for this:
1. It is "unromantic" and not the "usual" way for marriage.
2. She risks looking like a "gold digger" if she states what she thinks is fair and cannot justify to his satisfaction the basis for her concept of fairness.
3. Women are used to the government protecting them. The woman knows that if she marries a financially successful man (more financially successful than she is anyway) her chances of profiting in a divorce are high and her chances of not at least breaking even are very low. Most women resist negotiating directly on an equal one-to-one basis with a man with no government involvement that tips the scales in her favor.
4. If you have been cohabiting with her for awhile she feels that because you love her and now "know her well enough" you should trust her. Thus she feels insulted by a prenuptial contract that she deems unnecessary.
With respect to item 4, note that by culture and tradition there will be an onus placed on the man for even suggesting deviating from the default.
It is precisely in the default and the onus mentioned in item 4 where the new British Columbia (BC) law can be exploited before cohabitation begins. BC law considers that:
A relationship between spouses begins on the earlier of the following:
(a) the date on which they began to live together in a marriage-like relationship;
(b) the date of their marriage.
Note that condition (a) in BC law, provides a new justification for discussing a cohabitation agreement that did not exist before the new law. Additionally, before cohabitation begins, the premise in item 4 is gone. Specifically, you do not know her well enough because you have not cohabited with her. At this point, it is quite reasonable to discuss and agree upon a cohabitation agreement. Note also that the default (or reference) financial arrangement is how you currently handle financial affairs. The onus is on her to specify a reason for changing the current default and specifying how she wants it changed. If she objects to a cohabitation agreement, the onus is now on her to explain why you should put yourself at huge financial risk (with her as the beneficiary of that risk) before you really know her. If she is unwilling to sign or even discuss a fair cohabitation agreement, run, do not walk, away as fast as you can.
If she is willing to discuss a cohabitation agreement, then item 2 should help ensure that it is a fair agreement. Once a fair cohabitation agreement has been signed, smile and relax. (GROAN: Be sure she has independent legal counsel so that she, even as a supposedly competent adult woman, cannot suddenly claim that she should not be held responsible for what she signed.) You can smile and relax because you have now shifted the default agreement (if BC effectively marries you without your consent) from BC's default terms to the terms of the cohabitation agreement.
Furthermore, because negotiating the financial terms of the cohabitation agreement takes the pre-cohabiting financial arrangement as a starting point, you will not have been subjected to the legal legerdemain I was subject to in California. (See http://smolyhokes.blogspot.com/p/what-men-should-understand-about.html section 5 "5 Beware of Family Law's Dishonest Tactics About Prenuptial Contract Advice")
Also, if you do decide to "make it official" by actually consenting to marriage, the onus will be on her to explain if, and how, the marriage contract should be different than the cohabitation agreement. The cohabitation agreement becomes the starting point and not the mercenary "default" marriage contract.
Also, if you do decide to "make it official" by actually consenting to marriage, the onus will be on her to explain if, and how, the marriage contract should be different than the cohabitation agreement. The cohabitation agreement becomes the starting point and not the mercenary "default" marriage contract.
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