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Marriage Contract – When, What and How?

same sex couple signing divorce paperwork
When do you have to sign a marriage contract? 
You do not have to sign a marriage contract at any time. However if you and your spouse (or spouse to be) wish to clearly set out what respective future rights and obligations you will have on a potential breakdown of the relationship when it comes to spousal support and/or property division issues, you will probably decide that you should enter into a Marriage Contract.
Such a contract can be entered into before the marriage (commonly referred to as a prenuptial agreement), or after the marriage (commonly referred to as a post-nuptial agreement). Spouses that choose not to marry can also enter into such contracts (often referred to as cohabitation agreements). Agreements entered into before or after the marriage are just as enforceable as each other, as long as all other requirements for a valid contract are met. That being said, if a contract is not signed before marriage there is always the potential that it may not be signed after the marriage (for example, if you cannot agree to terms). Should this occur, you will not be able to avoid certain rights or obligations that arose as a result of the wedding having taken place.

2. What are the requirements for a Marriage contract?

For a marriage contract to be valid, certain requirements need to be met. Firstly, the contract must be in writing, signed, dated and witnessed.
The contract must also be clear (and each party understand its terms). They must enter into the agreement voluntarily, without pressure or duress from the other.
This also means that ideally both spouses will have their own lawyer, and that they will have exchanged full financial disclosure setting out their assets, debts and their income. A failure to do so can potentially result in a contract being set aside.

3. What can be included in a marriage contract?

Generally marriage contracts include terms regarding rights and obligations relating to spousal support and property division on a breakdown of the relationship. These rights can be modified and/or waived, as agreed, however it is important to remember that an entirely one-sided agreement risks not being enforced.
Marriage contracts may also include terms regarding child support and the right to direct the education and moral upbringing of the children.
Marriage contracts cannot include terms related to parenting or decision making of children, terms ignoring or overriding the provisions of the Child Support Guidelines, or terms limiting a spouse’s possessory rights regarding the matrimonial home. If a contract includes such provisions, they would not be enforceable.
4. Can a marriage contract be set aside by the court?
Marriage contracts can be set aside by a court in limited circumstances.
If one of the parties failed to make adequate financial disclosure, if a party did not understand the nature or consequences of the contract, if one of the parties was under duress, and/or if a term/terms of the contract are deemed to be unconscionable – these are all common reasons for an agreement being challenged and potentially set aside by a court having exercised its discretion to do so.
It is thus important to ensure that the provisions of a contract are not overly lopsided, that there is plenty of time to negotiate and consider the terms of the agremeent before it is signed, that each party has provided full financial disclosure and that each party has his/her own lawyer to provide advice on the terms of the contract. A failure to do so opens and agreement to significantly more risk of being set aside.

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About the Author

Barbara developed her passion for family law early on in her career. Barbara has practiced exclusively family law since her call to the Bar in 2003, articling with a sole practitioner in family law and then practicing with a boutique family law office prior to her arrival at Nathens, Siegel LLP in 2007. Over the years, Barbara has developed extensive experience in virtually all areas of family law including: custody, access, child and spousal support as well as complex property division.