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Elizabeth Street
2 August, 2008  
The lousy love contract

Poor Lizzy has just been sacked by her boyfriend and in the process has discovered that she was in a terrible contract. Now she has to throw herself into personal injury litigation to dull the pain


imageIt is 7 am and I am at work.

I have arrived early and settled into a frenzy of billing in an attempt to distract myself from misery.

My boyfriend dumped me. Some rubbish about me being more interested in my work than him. That’s what they all say. I think it is just a way of blaming me for commitment phobia.

Bastard.

But as I have thrown myself back into my work it occurred to me that I haven’t been very smart about the whole thing.

Relationships are simply terrible contracts.

If clients were to say they wanted to enter a contract that had no written terms, was for the term of their natural life and for which the only real consideration was sex, a lawyer would have to caution against it – specially where it there is an exclusive use clause in relation to the provision of sexual services. No outsourcing from third parties allowed.

It is clear that the effects of love and infatuation on the human psyche are such that clarity of thinking takes a hindseat.

Relationships have a seven year itch. So here are seven reasons why one should never ever get into these contracts:

No clear offer

In the old days the offer of a relationship was clear. Everyone vividly remembers Mr Darcy’s splendid offer to Elisabeth Bennett in Pride and Prejudice – “I must tell you how ardently I admire and love you.”

These days it is quite possible to believe an offer has been made, but once it becomes apparent that you are merely the “girlfriend”, it is not really an offer at all and that sleeping with someone does not a relationship make.

No clear acceptance

How many times has one party to a “contract” said “I love you”, only to have the other respond, “Isn’t that sweet!” or some such unenthusiastic variation.

It appears that in order to have a proper offer and acceptance, one must clear say, “Will you marry me?” and the other party must say, “Yes!”

Lack of explicit terms

The terms of a relationship contract have become very hazy.

In the old days, being in a relationship meant you were destined to marry and in the meantime there would be no sex or public snogging. After this abstinence the man would then earn the money and keep the woman and the woman would take care of her husband and children. Simple.

These days there are next to no explicit terms in the relationship contract. Even the term “exclusive” can be redefined to mean “but I only kissed her so it wasn’t cheating!”

At least with marriage there are promises to love, cherish, sometimes obey, stick around in sickness and health, wealth and poverty and to be faithful.

Still, on such a big deal you would think it smarter to get these terms in writing.

Confusion of implied terms

Don’t even get me started on the terms that can be implied into this contract!

Breach

Here is where the whole relationship/marriage contract comes unstuck. Couples tolerate continued breaches of the contract before attempting to end it.

Unfortunately with this sort of contact, one party can also choose to end it for no breach at all, e.g. they have found a new supplier and that’s that.

Ending the contract

Also known as divorce or breaking up, depending on the terms of the arrangement.

In divorce, the courts are left to try to work out the terms of the contract and then apply them. This is even harder with de facto relationships where there may be no explicit terms at all. Unfortunately estoppel doesn’t apply here either.

Compensation/Damages

There is no compensation per say, however the court may have regard to serious breaches by one party by giving the other a larger share of things they already own.

Common damage that occurs includes pain and suffering, loss of health, dignity, mind, possessions, children, pets, cars and the gaining of an intense desire to make every member of the opposite sex pay for the intense misery.

None of these sound in damages.

The only exception to all of this is the pre-nup, although this is yet to take on common application in Australia.

Anyway, I would expect most couples faced with the terms of the contract in writing would quickly realise what a crappy deal it really was and back out quick smart.

I have never practiced family law, probably because I believe it akin to a nastier version of criminal law or defendant catastrophic injury litigation – all of which profit from human misery.

That said, I do practice in defendant personal injury so a part of me is content to profit from human misery, although I’m convinced most of the plaintiffs I deal with are less miserable and more conniving.

Regardless, it is clear that the law of relationship contracts is the dirtiest of all.

Armed with this new insight I’m determine that my next relationship, should I dare even enter into a dreaded exclusive use contract ever again, will have some very firm ground rules.

Now it’s back to work before my feelings resurface.

Cheers,
Lizzy

 
 

Reader Comments

Posted by: Anonymous
Date: August 4, 2008, 12:40 am

A defendant personal injuries lawyer expecting sympathy? Tut, tut. I remember the ad Charlie Vandervord (now a member of Tress Cocks) placed in the press for a new solicitor with the prominent words: "No wimps." Those were the days...
Posted by: Anonymous
Date: August 4, 2008, 2:52 am

Not to mention one happier to profit from the furtherance of human connivance than the alleviation of human misery. Hard to muster too much sympathy at all.
Posted by: Anonymous
Date: August 8, 2008, 1:55 am

Ah, as a female defendant personal injury lawyer who was also dumped by her boyfriend last year I can empathise. The problem with our line of work is that when you are in turmoil your sympathy for the claimant who claims PTSD after being hit by a car at the parking lot of a Coles supermarket at 5km/h really seems to plummet. The offer of $50,000.00 to settle her claim suddenly seems to be a personal attack against your intelligence and skill instead of part of the negotiating game. Don't take it too personally Lizzy and don't try to throw yourself into your work to cover your feelings. Your clients won't think any more of you and while your billable hours may suddenly look very impressive the partners will just consider that you are 'better off single'. Get out of the office!
Posted by: Anonymous
Date: August 11, 2008, 6:07 am

To practice criminal law is to profit from human misery? That's an interesting analysis. I never expected a defendant personal defendant lawyer in a big corporate to take the moral high ground (or at least morally equally low ground) vis-a-vis criminal lawyers, but these are complex times we live in. By the way - of course you think personal injury plaintiffs are conniving rather than miserable. How else would you live with yourself?
Posted by: Anonymous
Date: October 15, 2008, 10:32 pm

Get a dog... they don't read contracts... and you can always use it to clean up the doggy does thereafter.... Or a Cat, They know how you feel, they just don't care... A lot like defendant civil litigant lawyers!