The first words that come to mind at the thought of love or relationships are probably not “protection,” “contract” or “safety net,” but a recent article in the New York Times used these words to talk about a new trend – “no-nuptial agreements.”

In “All the Conventional Cohabitation, but No Nuptials,” interviewee Rebecca Eckler described her no-nuptial agreement – like a pre-nuptial agreement but for those without plans to marry – as “literally a small novel.” The document, which she and her boyfriend signed three years ago, is legally binding and details what would happen to the couple’s assets if they break up.

The Census Bureau estimates that more than eight million couples were cohabiting in 2013. That number was five million in 2006.

Maria Cognetti, president of the American Academy of Matrimonial Lawyers, said most of the clients seeking no-nuptial or cohabitation agreements are divorced. “They don’t want to get remarried, but they want the protection a pre-nup would provide,” she said.

Frederick Hertz, a lawyer practicing in California, said most couples seek cohabitation agreements either to protect assets from each other or to protect the lower-earning party. “I’ve done several where the woman is giving up her career to raise kids, and what we wanted to do is establish a safety net,” he said.

The combined high rates of cohabitation and of divorce may be making no-nuptial agreements a popular arrangement. Matrimonial lawyer Louise Truax said, “Relationships don’t carry the same sense of permanency they did 20 to 40 years ago. Now it’s for better or worse or until I get sick of it.”

Does having a no-nuptial or cohabitation agreement help?

John Curtis, a former marriage and family counselor, said no-nuptial agreements are helpful because they offer an opportunity to delineate the topics or situations that could become problematic in the future.

A recent cohabitation agreement for a professional athlete with a history of short-lived relationships with women who become pregnant with his children was created by Marilyn Chinitz, a New York divorce lawyer. “We have drafted a cohabitation agreement that we feel protects him against the pitfalls of love,” she explained to the New York Times.

Lauren Zander, co-founder of a life and executive coaching organization, sees it differently. She said that cohabitation agreements seem to turn relationships into business arrangements. “Something seems very absent of love and care,” Zander said. “There’s no trust.”

A dating website that seeks to match “sugar daddies” with women who want to date them plans to offer a downloadable template for cohabitation arrangements online. “When you take someone into your home and have a relationship, you need to protect yourself,” said Angela Bermudo, a public relations manager for the company.

One young woman matched on the site signed a one-year agreement which entitled her to receive her own wing in the “sugar daddy’s” home, a $5,000 monthly allowance, the use of a white Bentley, and a $2 million trust fund. In exchange, she agreed to cook and clean, accompany the man to dinners with friends and not to flirt with other men. When the year was up, the young woman did not want to sign again.

“I had everything I ever wanted, but I was anxiety ridden,” said Alexandra Munoz, who worried about getting caught talking to other men on the phone. “I’m a very independent person.”

Frederick Hertz, a divorce lawyer, conceded, “Once or twice a year it turns out to open up a Pandora’s box of blame. But I’m a strong believer that if it is done right, it is a process that can bring the couple together.”

A few years ago, a woman writing under the pseudonym Louise Greenfield wrote in the Daily Mail about her experience with cohabiting with her boyfriend, with whom she had four children. Although they were engaged, they never married.

She wrote,

The day he left was the saddest of my life. I wanted to reach out to him, as he got into his car, and tell him everything would be OK — but I couldn’t. Which left me wondering: how has it come to this? How can we be taking apart something we spent so many years putting together?

And herein lies an uncomfortable thought. While it pains me to say so, I can’t help thinking that our situation might have been different if we’d got married.

For years, I told myself — and others — that marriage for me was just a word, a formality, and that David and I were as close as any married couple. Now I’m not so sure. Maybe, if we had made a proper commitment in front of our friends and loved ones, if we had said those binding, meaningful words, we might not be in this situation.

Although Greenfield talks about the difference between marriage, in which a legal arrangement has occurred, and the non-legally binding relationship of a cohabiting couple, she says there is more than just paperwork involved.

My family is, of course, far more important than a set of statistics, and I am doing everything I can to ensure they feel as secure as possible. And yet I only need to look at them to see how unhappy they are.

Everything they held to be safe has changed, irrevocably, and I am incapable of delivering the one thing they want — for me to be reunited with their father.

What makes it worse is that for years they were desperate for us to marry. And in hindsight, I wonder whether their eagerness stemmed from the fact that, in their minds, while we remained unmarried, there was a chance we might split up.

It’s agonising to reflect that their worst fears have now come true. Which is why I now lie awake, night after night, wondering whether, if we had married, things might have turned out differently.

Greenfield’s experience is a reminder that no-nuptial agreement or not, the “security” of a legally binding paper is not a substitute for the genuine commitment and trust that marriage can provide.

About the author
Emily Macke serves as Theology of the Body Education Coordinator at Ruah Woods in Cincinnati, Ohio. She received her Master’s in Theological Studies at the John Paul II Institute in Washington, DC, and her undergraduate degree in Theology and Journalism at Franciscan University of Steubenville. Emily shares the good news of the Catholic faith through writing, media appearances and speaking opportunities, which she has done on three continents. She and her husband Brad live in southeast Indiana.