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Contracts In Close Personal Relationships

Encouraging the use of contracts as a means of organizing close relationships between adults is by no means tantamount to rejecting all forms of legislative intervention or control, or to defending a return to classical liberal values in the name of some kind of absolute liberty. Three main areas of intervention by the legislator must be envisaged if the State is to recognize both the interest and legitimacy of contracts for close personal relationships as conceptualized above. This is as much to encourage the dissemination of such contracts as it is to provide a framework for their formation and performance. The State should (A) design or redesign a zone of contractual freedom for the partners; (B) provide a framework for exercising that freedom by establishing relational guidelines; and (C) establish a suppletive (i.e. "default") legal regime that respects prevailing values.

A. Designing or redesigning a zone of contractual freedom

Naturally, the theoretical model I propose involves the creation of a zone of contractual freedom that allows the partners sufficient room to manoeuvre. The purpose of a contract in a close personal relationship is to establish the obligations in the relationship based on the partners' mutual aspirations. The State should therefore avoid substituting itself for the partners, which it would be doing if it subjected them to different patrimonial or extra patrimonial obligations. In other words, to the full extent that public policy permits, the State must preserve the partners' contractual freedom and recognize their right to choose the terms that suit them.

Presently, the State does not generally dictate the "obligational content" of non-conjugal relationships and consensual unions [65]. The same cannot be said of marriage, at least in the province of Quebec.

Under the Civil Code, Quebec spouses owe each other succour and assistance. This obligation requires them to support each other economically for as long as the marriage lasts, and they cannot contract out of it [66]. The spouses must also contribute toward the expenses of the marriage in proportion to their respective means or by their activities within the home, and it is illegal for them to enter into a contract stipulating otherwise [67]. Lastly, the legislator requires them to split equally the value of certain family property as assessed on the date of separation, regardless of the terms of their marriage contract [68].

When the state subjects the spouses to such obligations, it is unilaterally imposing its economic view of marriage on Quebec spouses. In a way, it is also conflicting with the diversity upon which Canadian society is based [69]. Beyond equality, freedom, tolerance and respect (the non-negotiable values upon which all human relationships are unalterably founded) marriage does not mean the same thing to everyone [70]. For some, it is a multifaceted relationship by which individuals and interests are inexorably connected. For others, marriage is no more and no less than a union of individuals.

Young spouses who marry without money may tend to see themselves as true partners in a common, multi-dimensional undertaking. By contrast, older spouses who marry for the second or third time often perceive themselves as simple life companions whose relationship will be limited, as much as possible, to interpersonal exchanges. Blended families also have their own particular dynamic. It is difficult to imagine a marriage that brings together two families (at least to some extent) in the same fashion as we conceptualize more traditional conjugal relationships [71].

Quebec spouses are free to arrange the extra patrimonial aspects of their relationship as they see fit. Thankfully, subject to their formal recognition as equals, the law does not force them into any given lifestyle [72]. The law does infiltrate the relational component to some extent, however. The spouses owe each other fidelity under the Civil Code [73]. Even though conjugal fidelity is a natural obligation for most married couples, one can legitimately question whether it is still a matter for state law today [74]. If it is not, it should be removed from the Civil Code [75] so that the spouses themselves can address this moral duty according to their personal convictions [76].

In short, the partners should determine the central issues of their close personal relationship, not the State. As Jane Rule has said: "Human rights are the core responsibility of the government. The regulation of adult human relationships is not." [77]

B. Establishing relational guidelines

Some people will express a diametrically opposed position. They insist that legal boundaries be introduced to curtail the contractual liberty of partners whose relationships are presently ignored by the law, and to tighten the restrictions governing relationships that are already regulated by the State. They vigorously denounce what they perceive as an unbridled contractual liberty -a liberty that often has devastating effects on the socially and economically vulnerable. As a matter of justice, they demand that the state intervene more assertively, at least with respect to the patrimonial aspect of close relationships.

And yet, contracts are not necessarily unjust. It is too often forgotten that today's contracts have their own intrinsic limits [78]. Many obstacles imposed by current law prevent one contracting party from economically exploiting the other. The general principles of good faith, fairness, and abuse of rights, recognized by both civil and common law, are examples.

Naturally, the legislator will have to define more precisely the scope of the limits placed on close relationships, so that courts will be better equipped to redress socially or legally unacceptable situations. By so doing, the legislator would expressly be recognizing and entrenching the values of cooperation, integrity and solidarity that characterize relational exchanges (according to the typology proposed by Professor Macneil) [79]. For Quebec, this would not be novel.

Indeed, as Professor Louise Rolland [80] has brilliantly demonstrated, the new Civil Code of Québec, which has been in force since 1994, embraces the relational notion of a contract by elevating the values of cooperation and solidarity, present in the contractual relationship between partners, between mandators and mandataries, between businesspeople and customers, and between employers and employees, to the status of formal legal norms [81].

Lawmakers could therefore adopt a similar attitude to close relationships. This would make it abundantly clear that they disapprove of contracts that, when one scratches beneath the surface, enable one partner unduly to exploit the other for strictly personal benefit. As we have seen, from a relational perspective, the instrument of contract is never intended solely to defend the individual interests of one party.

Lawmakers could also include lesion as a cause for nullity in close personal relationship contracts [82]. This would guarantee an even greater degree of contractual justice between individuals, who might (even though they are capable adults) be vulnerable to exploitation because of their health, their age, their socio-economic status or the emotional state of their relationship. Punishing exploitation is no more and no less than punishing the abusive exercise of liberty [83].

These mechanisms, when combined, provide a framework for the partners' liberty without casting them all in a single mould reminiscent of tutorship. This is what Professor Rolland means when she states that [TRANSLATION] "[g]ood faith, fairness, and reasonableness are the bricks and mortar upon which potential abuses resulting from an unbridled liberty are kept in check."[84] In sum, contractual liberty comes equipped with different legal safeguards, which simply need a bit of maintenance from time to time.

If the legislator introduced a system in which legal assistance is provided before the litigation stage, many defects capable of invalidating contracts in close personal relationships could be prevented. Some provinces already recognize the value of such consultation in preparing marriage contracts. In Quebec, marriage contracts must be notarial acts; [85] Albertans are required to consult with a lawyer [86]. This guarantees that the partners get legal advice about the scope and consequences of their respective decisions.

Obviously, no professional filter can eradicate injustice and abuses altogether. The most sceptical among us will see this process as a mere a smokescreen. They will denounce the heavy burden placed on the partner seeking legal redress. They will criticize the fact that it is up to the injured party to seek justice in the courts, for this burden, in the worst cases, could put justice outside that party's reach [87]. Instead, they will argue that the fairer, more efficient choice would be to establish specific legal regimes that impose economic equality under all circumstances based on a purely category-driven approach. This would guarantee that the desirable balance is struck before any need for litigation arises.

What about freedom of choice? As Professor Burman writes, does not equality at any cost risk bringing about the death of liberty and the denial of all diversity? [88] It seems to me that liberty and diversity are worthy of being preserved. Our society is founded on these values and they cannot be sacrificed on the altar of an economic ideal.

No legislative or judicial mechanism can presume to be perfect. None is fully watertight. What matters most is to seek out and select the one that strikes the best balance between these diverse but equally fundamental values.

C. Establishing a suppletive legal regime

Lawmakers cannot reasonably assume that all partners in close relationships will enter into a contract. The contract must be voluntary, not compulsory. Having defended the basic principles of liberty and diversity that should form the basis of such a contract, it would be paradoxical, at the very least, to seek to impose one in the same breath.

Consequently, lawmakers who support the idea of a contract for close personal relationships will still have to create a suppletive legal regime for those who prefer for some reason not to enter into a contract, but seek the benefit of some legal framework nonetheless.

The Quebec law of matrimonial regimes could serve as a model here. Under Quebec law, spouses are allowed to choose their matrimonial regime by entering into a marriage contract before or during the marriage, subject to certain mandatory provisions in the Civil Code. At the same time, a suppletive legal regime exists for those who choose not to sign a marriage contract [89]. Thus, the spouses need only enter into a contract if they are dissatisfied with the suppletive legal regime or wish to make changes to it [90].

This suppletive structure, while perfectly suitable for marriage, requires major changes if it is to be extended to other close relationships. There are two reasons for this.

First of all, a suppletive legal regime must be circumscribed in time. It must begin on a precise date and terminate on another precise date. It must be a legal situation capable of being objectively delimited. The legal matrimonial regime takes effect on the day of the marriage [91]. The point at which it starts and is dissolved is established in a completely objective manner [92]. How can the legal regime applicable to consensual unions and non-conjugal relationships be validly circumscribed when the start date depends, for all intents and purposes, on a particular combination of facts that can vary from person to person? Secondly, the application of a legal regime must at least be based on an implied desire for one. By marrying, couples are expressly accepting a legal status. If they do not sign a marriage contract, they are deemed to subscribe to the principles and values underlying the legal matrimonial regime.

It would be inappropriate, at the very least, to impose a legal regime on consensual spouses or partners in a non-conjugal close relationship without their acquiescence, be it direct, indirect, express or tacit [93]. It is difficult to understand how the State could establish a legal framework governing the partners' patrimonial, [94] and to a certain extent, extra patrimonial relations,[95] based on criteria respecting the length of cohabitation, the nature of the relationship, the existence of children or any other distinctive element, without the knowledge of the principal parties concerned.

One way to solve this problem could be to confer a true legal status on the other relationships. The de facto status would be replaced by a legal status. For guidance in this respect, provincial lawmakers could look to the domestic partner registration systems in various foreign jurisdictions [96]. In general, couples under such a system may register their relationship in a government register [97]. In addition to achieving a form of social and legal recognition,[98] a registered couple automatically benefits from certain rights and obligations traditionally associated with marriage. Generally, the partners may contract out of the legal regime in whole or in part.

In my view, such a system might offer a solution to these concerns. To begin with, it would grant an objective status to close consensual relationships other than marriage. As with marriage, its legal existence would be sanctioned once it is registered publicly. The legal regime would be specifically defined in time upon registration. The suppletive regime would come into force on the day that partners without a contract registered, and would terminate if an when the contract is lawfully stricken from the register. Only partners who chose formally to register their relationship would be subjected to the legal regime, thereby preserving its voluntary nature. Consequently, consent could be legitimately implied.

Having said this, I feel it is important to devote special attention to three basic principles that should guide any legislative initiative in this area.

Firstly, the system should be available to all partners in a close relationship whose cohabitation involves a certain degree of economic, sentimental or emotional interdependence [99]. Obviously, heterosexual and same-sex spouses fall within this definition,[100] as do to two sisters who share a residence or an adult son living and caring for his mother [101]. It would be inopportune, in my view, to exclude these types of close relationship on the pretext that they are not equivalent to a true conjugal relationship. The partners' general economic and relational interdependence is what matters. In my opinion, whether the relational interdependence is sexual has no bearing at all and cannot be the sole basis for eligibility.

Secondly, the legal regime applicable to duly registered couples should be entirely optional. For the reasons mentioned, it is not the State's role to dictate the obligations involved in a close relationship, even in part. It does not seem appropriate to create and forcibly subject the registered partners to a mini mandatory regime;[102] they should be able to contract out of the legal regime provided they respect clearly established criteria of validity [103].

Lastly, the content of the legal regime should respond to the aspirations of as many partners as possible. The model that lawmakers offer should not be taken from either end of the spectrum. Rather, the legal regime must be a middle ground that can reconcile different social trends and thereby gain the support of a majority of individuals [104].

Having said this, a legal regime is not a product of legal deduction, fashioned only by legal experts. It would be difficult, even presumptuous, to theorize about any potential obligations without empirical data or input from social scientists and demographers.

I should mention, however, that a single legal regime might not be suitable for every type of close relationship. Conjugal relationships may not necessarily have the same degree of interdependence as non-conjugal relationships. This factor alone may warrant certain adjustments. A consensual union might benefit from a specific legal regime. Non-conjugal close relationships might be subject to another specific regime. In my opinion, it is better to create several specifically adapted legal regimes than to establish a universal regime that is reduced to a common denominator and constitutes a rather diluted portrait of the relationships for which it is intended.