Are Marriage Contracts Legally Binding?
There is a variety of reasons for couples to enter into a marriage contract. Whether it is to ensure the security of assets in the future or to set out rules for spousal support, marriage contracts may come in a few different forms and may be executed at different times during the relationship. There are a few factors that may define whether a marriage contract can be enforced in court.
Are Marriage Contracts and Prenups the Same?
When people hear the term “marriage contract,” they often think of pre-nuptial agreements. However, while pre-nuptial agreements are one form of a marriage contract, there are several others. The different types of marriage contracts include:
1. Pre-nuptial agreements
Agreements that couples can enter into before they get legally married which often outline financial plans. Some prenups even discuss children and how they will be raised and supported.
2. Cohabitation agreements
Agreements that couples can enter into before or after a couple begins living together. Cohabitation agreements often detail who owns what property, and how they will deal with the division of their property in the event that they break up. Cohabitation agreements are identical to prenup agreements, except that cohabitation agreements are entered into by common-law couples, instead of couples who are becoming legally married.
3. Post-Nuptial agreements
Agreements that legally married couples can enter into after they become married which often deal with issues pertaining to property ownership and division and/or how the couple intends to have spousal support dealt with in the event that they separate or divorce.
4. Separation agreements
Agreements that legally married or common-law couples enter into after or upon a separation that often set out how they will divide their marital property, the amount of spousal support that will be paid, and how they intend to handle parenting time, child support and other parenting issues in the future, if applicable.
Is your marriage contract enforceable?
While each of these agreement types is entered into at a different stage in a couple’s relationship, and sometimes for different reasons, they can each face issues related to their enforceability in court if they are ever challenged. For example, courts in BC can set aside a marriage agreement of any kind, in whole or in part, where the agreement is deemed to be significantly unfair.
Whether or not an agreement will be deemed significantly unfair depends on the specific facts surrounding the negotiation and signing of each agreement, as well as the agreement’s contents.
Legally Binding Marriage Contracts
However, there are a number of different things that you can do to help ensure the agreement you are entering into is fair, and therefore, more likely enforceable.
Firstly, it is important that your agreement is in writing and that you both sign the agreement and have a witness present to watch you doing so. If the marriage agreement does not meet these criteria, it will likely face significant issues related to its enforceability.
Another important way that you can make a marriage agreement more enforceable is to both receive what is called independent legal advice, or ILA, before signing it. What this means is that both parties will go separately to see two different lawyers and be given advice about the contents of the agreement. When giving independent legal advice, a lawyer will make sure to explain to each person what the agreement says and means, and what legal rights and obligations the agreement touches upon and affects.
Further, a lawyer will often advise you to have property contemplated within the agreement appraised or valued to ensure that you fully understand the rights and interests at stake. If an agreement favors one party more significantly in a way that is likely to make the agreement unfair, a lawyer will advise you of this, too, and can help you revise the agreement if necessary. This can prevent issues related to enforceability from arising later down the line.
If you have entered into a marriage agreement and have questions related to its enforceability, or if you are considering entering into a marriage agreement and have questions about where to start, it is important that you seek legal advice from experienced Family Law counsel that will be able to provide practical solutions for your situation. The Family Law team at McQuarrie has a broad range of experience with crafting and disputing marriage agreements. Contact us today to learn more about what marriage agreement may suit your needs.