Financial Maintenance or Support

Lesson 4: The Marriage Contract

Marriage contracts have been around for quite a while, but they are becoming increasingly popular as more and more couples are becoming aware of the potential problems that can arise in a marriage. Rather than fighting over things down the road, they are deciding to draw up a legally binding agreement outlining their responsibilities and duties as a married couple. Of course, marriage contracts are not a requirement of getting married, but many couples these days seem to think they are a good idea.

When couples draw up marriage contracts, they can put into them all sorts of things over and above how property will be divided. If the marriage ever fails though, not everything will be enforced by the courts. For example, they can include household arrangements (who is to be responsible for what in running the home), how their individual salaries are to be used, and how property will be shared during the marriage. They can even include such things as an agreement that the wife will not have an abortion before having a specified number of children or without her husband's consent, or that both spouses will strive to work outside the home.

The focus of this section is marriage breakdown. So the question emerges as to just what agreements about property distributions and support a married couple can come to in a marriage contract and what the contract will enforce in the case of separation or divorce. The fact is that a husband or wife can agree to give up his or her rights under the Matrimonial Property Act . For the courts to agree, however, the following points must all hold true:

1. The contract must be in writing.
2. Both parties must have agreed to the contract of their own free will.
3. Both parties must have consulted separate lawyers before giving up their rights.

If you ever do write up a marriage contract, remember that it is a legal document that someday may be taken very seriously by the courts. You must get independent legal advice, even though this can be awkward when you are contracting with someone you presumably love and trust.
Be very clear about any rights you are giving up, and be sure to review the contract from time to time with your spouse and make any needed changes to it as your situation or lifestyle changes. What seems appropriate when you are young, healthy, and childless may seem entirely out of place later in life.