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Contracts In Close Personal Relationships

The close relationships that we develop and nurture in the course of our lives shape our identity and generally reinforce our sense of belonging to the community [1]. Owing to their intimacy and emotional significance, these relationships are usually a source of fulfilment, happiness and comfort.

While some relationships are characterized by complete spontaneity and involve no formal organization or support, other kinds of relationships involve some degree of ordering and structure. Relationships based on a true dynamic of emotional and economic interdependence fall within this category. They generally involve some form of cohabitation.

Marriages, and other types of consensual union, are the quintessential illustration of this category. However, they are not the only relationships involving cohabitation and considerable interdependence. Consider the case of two sisters who live together, or an adult child who lives with and cares for an elderly mother. Although they are not bound together by conjugal love, they may nonetheless be called upon to fulfil each other's needs in a true dynamic of interdependence.

Marriage has been raised to the level of a status, even an institution, and has long been subject to very tight government regulation [2]. While consensual unions have not been placed on the same socio-legal footing, lawmakers are giving them increased importance and impact. Most provincial and federal legislation of a social nature treats heterosexual or same-sex consensual unions as though they were marriages, and some provincial statutes grant them certain prerogatives traditionally associated with marriage [3]. Recently, Nova Scotia followed the example of certain foreign jurisdictions and established a domestic partnership registration system that gives partners access to a legal status that is practically equivalent to that of married couples [4].

Despite what they have in common, not all highly interdependent relationships enjoy the same legal recognition. The state focuses its attention on conjugal relationships and neglects the others.

The law has always marginalized non-conjugal relationships. The state pays little attention to the interdependence between sisters who share a residence, or adults who live with their elderly parents. In other words, lawmakers have yet to provide a solid framework or support for the interdependent relations between people in close non-conjugal relationships: They have not yet created meaningful social policies or programs for them, and they have not yet extended them rights similar to those enjoyed by spouses in relation to each other [5].

Last fall, the Law Commission of Canada launched a broad public consultation concerning the role of the state in close personal relationships between adults, and in particular, the values that should guide any legislative reform on the subject [6].

This paper is about contracts in close or intimate personal relationships and is part of this general review. If a jurisdiction wishes to reform its laws, it must review its social policies and programs based on the priorities and trends it has identified. But it must also consider the methods that the law uses to structure private exchanges within close personal relationships [7].

The contractual model has some very interesting potential in this regard. As an instrument of private normativity, contracts offer a means to establish a framework of rules adjusted to the particularities of every relationship. When delineated by a well-defined legal environment, it can provide adequate recognition and support to personal relationships of any kind, while preserving the values of equality and autonomy that form the basis of such relationships.

In Part 1, I will set out the theoretical framework of the contractual model I advocate. The purposes of the model are described in Part 2, and the normative perspectives of the model are discussed in Part 3. The role of legal professionals in deploying this model, and the legislative environment in which it can be developed successfully, will be the subjects of Parts 4 and 5 respectively.