Marriage Contract & Prenuptial Agreement

Commonly referred to as a ‘prenup,’ a marriage contract, under section 52 Family Law Act, is an agreement outlining the terms parties have agreed to usually on how to resolve certain issues on a breakdown of the marriage.

It will usually address how you and your spouse will divide your finances and assets. Everyone can benefit from a marriage contract, even if you only have a small amount of assets. This agreement will protect your separate property, support your estate plans, define what property is considered marital or not, save money in reducing conflicts, outline special agreements, and establish any procedures/protocols you may want to follow for deciding on future matters between you and your partner.

The valuable characteristic of marriage contracts is that the couple have the autonomy to decide almost everything. If a marriage contract is non-existent, divorce becomes a nightmare and each spouse is essentially left unprotected and vulnerable. By outlining rights and responsibilities, it becomes easier to divide everything and adhere to any special arrangements regarding support, property, education, etc. without having a court decide for you.

It is the dreaded conversation that no one wants to have before marriage; however, the consequences of this may lead to difficult months and sometimes even years settling everything.

One of the most common mistakes a couple makes regarding marriage contracts is not knowing that they can still enter into an agreement after they are married. Should a couple choose not to address a marriage contract before marriage, they are able to enter into one after marriage as long as they are not doing so with the intention to get divorced in the near future.

At AP Experienced Lawyers, we follow a 6-step process with a couple who want to draft a marriage contract

1. Initial consultation – We spend time at this stage clarifying your objectives. Before providing any advice. It is imperative that we understand what you are trying to accomplish.

We then advise you on the legal implications of your goals and show you how we can draft an agreement that helps you achieve your objectives, while also ensuring that the possibility of it being challenged in the future is minimized.

2. Following the consultation, you can either discuss with your partner, or we can write to him or her, outlining the proposed terms of the marriage contract.

3. You exchange disclosure documents.

4. If your partner would like to incorporate some of his or her goals or negotiate different terms, we advise them to retain their own counsel and the negotiations is done through counsel to avoid any friction between the parties.

5. We draft the marriage contract and the party who is not our client must obtain independent legal advice

6. The marriage contract is signed by both parties and their lawyers.

Most marriage contracts cover:

• What happens with property each party brought into the marriage?
• What happens to the matrimonial home if it was owned by one party prior to marriage?
• How would property be divided if the parties separate?
• Are there specific assets that a party wants to exclude for various reasons?
• What happens to their property in the event of death?
• Would spousal support be payable on separation?

Remember, that if you do not answer and define what you want, you are left at the mercy of the law in force at some point in the future and chances are, you will not be happy with that result.