--- title: "Opinion: The Collapse of 'Ironclad Contracts' ✦ Goldwater Droit" meta: "og:description": "Me Anne-France Goldwater critiques unregulated cohabitation agreements and argues for equal legal protections for common law spouses in Quebec." "og:title": "Opinion: The Collapse of 'Ironclad Contracts'" description: "Me Anne-France Goldwater critiques unregulated cohabitation agreements and argues for equal legal protections for common law spouses in Quebec." --- ![Opinion - The Collapse of 'Ironclad Contracts'](https://goldwaterdroit.com/_vercel/image?url=%2Fimg%2Flogo%2Flogo-mark-textured.png&w=1536&q=80) [News & Insights](https://goldwaterdroit.com/en/news-insights) # Opinion - The Collapse of 'Ironclad Contracts' 30 December 2010 5 min read [Family Law](https://goldwaterdroit.com/en/news-insights?topic=family-law) [Marriage & Cohabitation](https://goldwaterdroit.com/en/news-insights?topic=marriage-cohabitation) [Asset & Property Division](https://goldwaterdroit.com/en/news-insights?topic=asset-property-division) [Articles & Analysis](https://goldwaterdroit.com/en/news-insights?category=articles-analysis) In response to the text "The Lola vs. Éric Case — No Cause Can Disregard the Truth" signed by the president of the Chambre des notaires, Jean Lambert (Le Devoir, December 23, 2010), I wish to point out that the Chambre des notaires has been among those who have most often advocated, in parliamentary commissions, for the need to protect common law spouses and their families, without discrimination, and has done so for several years. This is very much to their credit. Furthermore, in October 2007, the Chambre des notaires commissioned a survey on common law unions, raising public awareness about the confusion surrounding the laws governing common law spouses. So it cannot be said that notaries are unconcerned about the fate of "de facto families." As for me, I have never said that "cohabitation agreements" are not valid. That does not reflect my thinking. My concern is that the same protective laws that govern family relationships do not apply to cohabitation agreements. We are swimming in unknown waters, as the Civil Code voluntarily blinds itself to the fate of relationships between common law spouses, still bearing the stigma of the sin of yesteryear regarding relationships outside marriage. Why do we seek to protect married spouses, consumers, workers, tenants, but not unmarried partners? #### THE FAILURE OF CONTRACTUAL FREEDOM I quote Me Lambert's own words against his argument: "for more than 30 years indeed," notaries were the privileged witnesses to the failure of marriage contracts, a "mission" entrusted to them. Can I do better than to quote the Supreme Court on this point? The Honourable Justice Gonthier observed in 1990: "Quebec law has long recognized the freedom of matrimonial agreements and the ability of spouses to opt for the separation of property regime. The numerous and flagrant injustices flowing from this regime are well known; one of the spouses, generally the wife, was often left destitute at the time of divorce while the other spouse had capitalized throughout the marriage by benefiting from monetary contributions and unpaid labour." Justice Gonthier traced the history since the 1970s of efforts by the legislature and the courts to remedy the injustices caused by marriage contracts. The legislature, frustrated, resolved the problem for the vast majority of married couples by imposing the family patrimony law in 1989. To my knowledge, notaries have never acknowledged their responsibility for the injustices caused by "contractual freedom" in marriage contracts under the separation of property regime. And know, ladies and gentlemen, that in 30 years of practice, I have no memory of ever meeting a woman who truly understood what she was giving up when she signed her marriage contract, often the day of or the day before her wedding — a time when, believe me, a woman is not thinking about anything other than consecrating her union with her beloved. Given the profound failure of "contractual freedom" between married spouses that we, as lawyers, have witnessed for decades, allow us to doubt that the consequences of "cohabitation agreements" will be any better for future generations of unmarried partners. #### CONTRACTS WITHOUT OVERSIGHT Is there an obligation for each partner to receive independent legal advice before entering into these cohabitation agreements? No. Is there an obligation for financial disclosure by both partners so that decisions are made with full knowledge of the facts? No. Other provinces legally regulate "cohabitation agreements" and ensure that unconscionable agreements can be annulled. Does this legal protection exist here? No. This protection exists only for married spouses. And what about the case (dating from 1997 and involving a cohabitation agreement of a childless couple) cited with pride by Me Lambert (to demonstrate that these contracts are recognized by the courts)? Please — this is the golden example of the unpredictability of these contracts! The partner in that case ended up with a lifetime alimony obligation to the woman — wonderful for the partner, but certainly not what the man expected when he entered into the contract! And he has no right to have the support reduced, even if he can no longer afford to pay it! And the right of use of a house that he granted to her (a common arrangement between married spouses on a temporary basis) was declared permanent by the court! Finally, the gift of furniture worth $25,000 from him to her was annulled by the court. The result? The partners signed an agreement that resembled a typical agreement between married spouses, but found themselves at the end of their union with a court interpretation of their contract that did not fall under family law, and which must therefore have been a nasty (or very pleasant) surprise for the contracting parties! I would add that the Court of Appeal did not object, in another case (2001 RJQ 2047), to common law spouses establishing a family patrimony and a business patrimony. Justice Brossard declared that it was "essentially an innominate contract under which the parties, in consideration of their respective contributions to the common life, agree to confer upon whichever of the two was financially disadvantaged in this common life a right of claim against the other." So, to the extent that such an agreement would reproduce the protective philosophy of the Civil Code with respect to the economic consequences of conjugal life, I suppose no harm would come of it. But who will protect the common law spouse injured by a cohabitation agreement? To ask the question is to answer it: no one. Are we doomed to relive the decades of injustice that married wives have experienced? Or rather, can we choose to do better, and ask the legislature to offer the same array of protections to all Quebec families? And perhaps, at the same time, can we finally improve the rules governing marriage contracts, by adding a reference to cohabitation agreements in the same chapter, and make the necessary corrections: the right to independent legal advice, the right to financial disclosure, the right to seek nullity of an unconscionable contract? _Anne-France Goldwater, December 29, 2010, [Le Devoir](http://www.ledevoir.com/societe/justice/313768/libre-opinion-l-effondrement-des-contrats-beton)_ [**Previous Post**From Patriarchy to Partnership - Championing Lola's Cause](https://goldwaterdroit.com/en/news-insights/2010/09/from-patriarchy-to-partnership-championing-lolas-cause) [**Next Post **The Supreme Court Rules on Unjust Enrichment for Common Law Spouses](https://goldwaterdroit.com/en/news-insights/2011/02/supreme-court-rules-unjust-enrichment-common-law-spouses)