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Contracts In Close Personal Relationships

As a general rule, contracts are solely concerned with the patrimonial (i.e. economic) dimensions of the relationships they are intended to regulate. This comes as no surprise in civil and commercial matters, where the stakes of the exchange are often limited to the economic. Partnership or franchise contracts are not designed to govern the social ties between the partners, except perhaps incidentally. Rather, they concern themselves with the financial objectives that each of them is pursuing.

But close relationships between adults cannot be approached from the same perspective as business relationships. They evolve in an environment that is both patrimonial and extra patrimonial. The exchanges between the partners, which generally take place in a shared residence, generate an interdependence that is not only economic, but relational and even emotional as well. In short, their joint project amounts to more than dollars and cents. Quite the contrary, the patrimonial aspects of their relationship are almost always subordinated to the extra patrimonial aspects, and the economic interdependence simply stems from the relational or emotional interdependence.

Despite these fundamental distinctions, legal scholars and professionals still seem to conceptualize close personal relationships and business relationships from within the same framework. Quebec scholarly writing on marriage and consensual union contracts offers convincing evidence of this. One can assume that the information contained in such instruments is a good reflection of the generally prevailing perspectives on the subject, even though it is not empirical data from scientific studies.

Quebec marriage contracts are uniformly portrayed as the legal instruments by which spouses adopt a "contractual" matrimonial regime when they wish to opt out of the general "legal" regime [22]. It is generally understood that marriage contracts are exclusively about property and leave the relational aspects of marriage aside [23]. Domestic partnership contracts have a similar purpose. In theory, they merely establish a legal framework for patrimonial relations between the de facto spouses to the extent that the state has not intervened directly or indirectly [24]. In sum, the contracts available to de jure and de facto spouses are not at all concerned with the establishment of a normative framework for all dimensions of the relationship. Rather, they are limited to major economic issues.

The contractual avenues in the other Canadian provinces are similarly paved. In British Columbia, the law expressly enables spouses to sign a "marriage agreement." That province's Family Relations Act provides [25]:

61. (2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for


(a) management of family assets or other property during marriage; or

(b) ownership in, or division of, family assets or other property during marriage, or the making of an order for dissolution of marriage, judicial separation or a declaration of a nullity of marriage [26].

Notwithstanding this, the immense potential of contracts, as reconceptualized in light of the developments discussed above, should not be overlooked. A relational contract is designed to define every dimension of the joint project based on the partners' values. In short, the contractual process gives the partners an opportunity to set out all their mutual expectations from the relationship (economic and otherwise) in the form of reciprocal commitments. What is the objective of the relationship? What form will it take? What role will each partner play in it? What are their fundamental values? And beyond these abstract considerations, how will these values be operationalized on a day-to-day basis?

Initially, one might doubt whether such a process of articulation is particularly useful or appropriate for close personal relationships. What is the point of clarifying, formalizing and contractualizing a relational project if the people involved are already on intimate terms? Doesn't their love alone guarantee that they understand each other's visions? For example, it could be argued that the two sisters who share a residence have a common past that is likely to elucidate their respective expectations, both now and in the future. Won't a natural framework for their relational exchanges ultimately build itself, without the need to contemplate the development of any formal organizational structure?

The partners' past dealings, and eventually their cohabitation, will certainly encourage them to disclose certain expectations. Time and interactions undoubtedly have a way of revealing things to people about each other [27]. However, a joint project cannot be measured solely by reference to expectations that emerge in ordinary dealings as toothbrushes intermingle [28]. Other expectations will remain unconscious, untold or ambiguous and will only become clear in time. By then, the climate could be adversarial and less than propitious to continued exchanges. At that point the partners, as certain marital relations specialists will attest, will discover the rift between them. Dr. Clifford Sager and his colleagues have the following to say about couples' expectations:

While each spouse is usually at least partially aware of the terms of his contract, and the needs from which these terms are derived, he may be only remotely aware, if at all, of the implicit expectation of his spouse [29].

Similarly, American sociologist Calfred Broderick states:

Each person enters marriage with his or her own vision of what the reciprocal obligations are. Sometimes, there are conscious expectations; sometimes, they may surface only indirectly through the outrage produced when they are not met [30].

This reality is undoubtedly exacerbated when the relational framework undergoes a normative backwash. Backwashes do not wipe away everything as they recede. They leave traces. For example, a couple might very well enter into a close relationship with semi-conscious expectations based on old sociocultrual models that are not longer universal reference norms. Once again, the case of marriages seems quite revealing and should to be cited as an example [31].

Perhaps at one time, community, family and faith were powerful normative sources that established a quasi-uniform model for conjugal life and tended in some way to regulate behaviour. This is no longer so. The values of a relationship are no longer dictated by social or religious imperatives. Everything is now negotiable between the spouses. In theory, nothing can be taken for granted anymore [32].

For example, procreation is no longer the exclusive basis for marriage. The spouses' roles are no longer systematically distributed based on gender. Today, each spouse continues to function as an individual and expects to have an independent life. Marriage is no longer considered as permanent as it once was [33]. In short, the monolithic, traditional model that most couples once accepted has given way to a plurality of models whose contents the spouses must define based on their particular expectations. As the President of the Conseil de la famille et de l'enfance du Québec has said:

[TRANSLATION] The values that emerge from surveys reflect a society that is individualistic and pluralistic above all else - a society in search of new models. In their pursuit of happiness, individuals in society once shared clearly defined reference points. Based on the survey results, these reference points are now lacking. … Self-affirmation has taken the lead over major institutions in defining reference points and codes of meaning [34].

In short, since the issues in close relationships are no longer determined by external sources but rather by the partners alone, it would seem both legitimate and suitable to advocate the idea of a platform for communication and organization leading to the establishment of a relational plan tailored to the contours of the relationship and built with reference to the specific expectations of the people concerned. Conceived in this manner, contacts for close relationships are more than a revised and updated version of economically oriented contracts favoured by classical doctrine. Rather, they would be charters for shared lives with the potential to become a multidimensional normative framework for relationships.

Having said this, it is important to examine the normative perspective of contractual provisions in contracts for close personal relationships. Here again, we will see that the proposed model does not square with prevailing paradigms.