Marriage contracts, commonly known as prenuptial agreements or prenups, allow future or existing spouses to set out their respective rights and responsibilities during the marriage and in the event of a separation. While they are often associated with situations where one party enters the marriage with significantly more assets than the other, they are advantageous for any marriage. If a couple already has a cohabitation agreement in place before they marry, the cohabitation agreement can become a marriage contract. Alternatively, a new agreement can be signed at that point to reflect the change in circumstances.
At Shariff & Associates, our lawyers can assist you in preparing a marriage contract that is fair to both you and your spouse and will help to avoid lengthy disputes if your relationship ends.
The Advantages of Creating a Marriage Agreement
There are two main advantages for creating a marriage agreement and setting out the terms of a separation, prior to marriage.
- It allows the parties to discuss and manage issues from a place of collaboration and mutual respect. The process of designing a separation agreement can often be more complicated due to hurt feelings, or even serious conflict. By setting out the terms when the relationship is healthy, the process can be much more efficient and less stressful for everyone involved.
- Having a comprehensive agreement set out in advance will help to avoid lengthy dispute resolution processes in the future. Should the relationship break down, the terms of the marriage agreement can be used to create a mutually agreeable separation agreement quickly. While there will likely be a few matters to negotiate at the time of separation, a large part of the work will have been done already, allowing each party to move forward more quickly.
What Cannot be Included in a Marriage Contract?
Certain matters cannot be included within the terms of a marriage contract.
- Parenting issues, such as parenting time, decision-making ability, and child support will not be enforced if they are included. In many cases, marriage contracts are created before a couple even has children and the law recognizes circumstances may change over the course of a marriage. Further, parenting issues must be determined in accordance with the best interests of the child which may vary depending on the relevant circumstances at the time. Legislation therefore prohibits setting out parenting terms in advance. Instead, this issue must be resolved at the time of separation.
- Exclusive possession of the matrimonial home cannot be pre-determined within a marriage contract. Married couples each share an equal right to remain in the matrimonial home after a separation, pending a court order or a separation agreement. A couple cannot dictate, for example, that one spouse or the other will be required to vacate the home in the event of a separation. Again, this issue is one that must be decided at the time of separation, if necessary.
- The parties cannot opt to mandate a particular dispute resolution process in a marriage contract. Like the issues above, determining the resolution method in advance could disadvantage one of the parties at the time of separation. Instead, the choice of venue or method for resolving any outstanding issues will need to be determined at the time of separation.
The Importance of Honest Financial Disclosure
Married couples have a right to equalization of net family property (and family debts) at the time of separation. For this reason, any agreement contemplating the terms of property division should be made in consideration of an accurate picture of the parties’ various financial interests. This will allow both people to address specific assets or debts in the agreement, and ensure they have a full appreciation of their rights and obligations.
If a court determines one or both parties were dishonest about their finances when the agreement was created, the agreement could be invalidated.
Contact the Family Lawyers at Shariff & Associates for Marriage Agreement Drafting & Review
The family lawyers at Shariff & Associates work with each client to ensure they have a full appreciation of the client’s goals before drafting or reviewing a marriage contract. We use our considerable experience in drafting and negotiating contracts to protect our clients’ rights and ensure they understand the implication of each term before signing. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.