It is common for two people to negotiate and enter into a contract prior to marriage, which helps set out the rules of the marriage and any agreements regarding their respective rights during the marriage or at separation. The agreements address property rights, among other issues, and are signed before a couple marries.
Although the Family Law Act (FLA) provides a default scheme for the ordering of two parties’ affairs upon the dissolution of their relationship, it also recognizes that parties may want to organize their matters in their own way. Such contracts have become quite popular. For many, they tend to act as ‘insurance’ – a plan to protect parties in a worst case scenario. They are most commonly used by people who are entering a second marriage, have significant assets or a substantial fortune, or want to protect their familial assets (i.e. a family business or family money).
In the United States, these agreements are commonly referred to as prenuptial agreements. In Canada, we refer to them as marriage contracts or domestic contracts.
Some may argue that marriage contracts trivialize the sanctity of marriage and incentivize divorce, while others may argue that having the consequences of a divorce laid out ahead of time encourages couples to work towards reconciliation, thereby making marriages more stable.
While it may not be the romantic topic of discussion prior to a marriage, having an understanding about what would happen in the event of a divorce is important for both parties.
Initiating a discussion about a marriage contract or domestic contract should be done far in advance of a wedding.
Waiting until the eve of the Big Day is far too late. It is not fair to your future spouse to tell them moments before you walk down the aisle that you demand to sign a marriage contracts or domestic contract. Furthermore, that circumstance might constitute coercion, and such a document might not stand up in court.
In order to be legally valid and enforceable, the marriage contract (and any other domestic contract or agreement) must be in writing, signed by the parties to the contract, and witnessed. Typically, only those who possess requisite capacity (are mentally capable and 18 years or older) will be considered parties to such a contract. Full and frank financial disclosure is also required prior to the execution of any domestic contract.
Ensuring that the marriage contract or domestic contract is drafted and the signing process is complete long before your wedding takes place is vital. If you leave it to the last minute, you will both be stressed, which could lead to arguments.
It is important to be honest about your motivations for obtaining a marriage contract or domestic contract. A good justification may include wanting to protect the interest of yourself and the person you live in case of a divorce.
A persuasive argument for signing a marriage contract or domestic contract is telling him or her that you will draft the document together, so that it addresses both of your needs and concerns. Keeping ones stipulations reasonable is necessary in these situations.
Note that marriage contracts, and domestic contracts generally, deal with (and often take away) one party’s rights to property or support. Therefore, it is advisable that both parties seek independent legal advice prior to agreeing to or signing anything.