A marriage contract, commonly known as a prenup or prenuptial agreement, is a written contract between two people entered into before or after marriage. Marriage contracts are mostly popular among people who have been previously separated, have children from a prior relationship or have family money/assets they wish to protect in the event of a marriage breakdown. A marriage contract may be suitable for any couple that seeks to clarify their financial rights and responsibilities during the marriage as well as spell out what happens to their property when they die or in the event of divorce. Prenups can also protect couples from each other’s debts. It’s critical to work with a qualified family lawyer in Toronto when signing any domestic contract.
We’ll go over 4 most common problems that may cause a prenuptial agreement to be unenforceable.
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Unlawful terms within the agreement
Unlawful terms within the agreement: Parties involved in a marriage contract can agree to include several matters in their agreement, but these should not be unlawful. For instance, if the agreement includes child support provisions and custody clauses that do not comply with the law \ the court may choose to set aside the entire agreement or, more likely just the offending clauses. Custody and parenting time will always be determined based on the best interest of the child and not on the prior arrangements of parents.
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Failure to seek legal counsel
Prior to signing a prenuptial agreement, the parties involves should seek legal representation to obtain independent legal advice (ILA). Independent legal counsel will help both parties to safeguard their rights and avoid issues such as allegations of coercion and duress. Both parties can negotiate the terms of the marriage contract and promote the likelihood that it will be enforceable.
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The agreement misses key legal requirements
Pursuant to section 55 of the Ontario Family Law Act, a domestic contract (including a marriage contract) must be written and signed by both parties and in front of witnesses. The act also requires that both parties must the capacity to sign the domestic contract. If the agreement is signed without taking all these requirements into consideration its enforceability may be successfully challenged.
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Fraud
In cases where one or both parties failed to disclose significant assets, the courts may choose not to enforce the domestic contract. The agreement may become unenforceable if one of the parties misrepresented himself or herself or was dishonest.
We have seen how simple missteps when drafting a domestic contract can have huge consequences on your future and that of your family.