Weddings Bands and Marriage Contracts
If you have ever heard the song “Gold Digger” by Kanye West, then you may be familiar with the term “pre-nup”, short for prenuptial agreement. A prenuptial agreement is just as it sounds; an agreement that is made prior to parties impending nuptials, in other words their wedding day. This is a widely popular term in Hollywood media, movies, and amongst celebrities, however, it is a term that is used mainly in the United States with a negative connotation attached. In Canada, this type of agreement is more commonly accepted and referred to as a marriage contract.
A marriage contract is a legally binding contract that outlines, amongst other things, how assets will be divided and/or how child or spousal support will be paid in the event of a divorce or dissolution of the marriage, or death. It is similar to a separation agreement in that it outlines the terms of separation, however there are certain differences; marriage contracts can be made before or after a wedding and while the parties are still in a relationship. This differs from a separation agreement, which is usually negotiated after the parties have already separated. Marriage contracts also differ from prenuptial agreements in that they can be made after the parties are already married. Notwithstanding marriage contracts can be entered into by already married spouses, most choose to negotiate the contract prior to a wedding.
Some couples who intend on marrying prefer to work out the terms of the marriage contract well before a wedding date as they are able to amicably and level-headedly agree on certain terms in the future event of a separation. In contrast, if the parties have experienced a tumultuous and high-conflict separation, it may be harder to come to any type of negotiation or agreement with a former spouse as emotions are high.
It is important to note that these agreements are legally binding and are governed under the Family Law Act as domestic contracts. There are, however, certain provisions in the agreement that may be set aside if they are made in a manner that is inconsistent with the law. For example, if there is a child involved, a court may set aside the provisions of the agreement if they are not consistent with the Child Support Guidelines. At all times in family law, the best interests of the child prevail. If your agreement is drafted in a way that is inconsistent with the best interests of the child, the relevant provisions may also be set aside.
If you have drafted your marriage contract on your own, it is important to have a family lawyer review it to ensure the terms are consistent with the law and to assess whether it will be held up as valid and enforceable in the event it is challenged. Failing to do so could result in lengthy and costly litigation, and ultimately could be set aside. This means having to not only pay legal fees, but also paying a significant amount of money to your spouse upon separation, which you intended to protect. Having a properly drafted marriage contract from the outset could save you upwards of tens of thousands of dollars.