The purpose of a marriage contract is to set out terms that can be relied on in the event of a separation. However, courts can and do overturn agreements where they were negotiated under unfair circumstances or where the outcome would be unequitable. The good news is that there are steps you can take to increase the chances that your agreement will be upheld:
First, make full and complete disclosure of your assets and income and expect your partner to do the same. This is particularly important where either party is waving their entitlement to property or spousal support. Full disclosure is the basis on which the agreement is made and a failure to do so certainly increases the chances of it being overturned.
Ensure you have at least a basic understanding of how the current law would deal with your assets and support obligations if you did not enter into an agreement. The further your agreement strays from this, the higher the likelihood it will be overturned. While parties are certainly allowed to enter into their own private agreements, the courts will be concerned where the outcomes are particularly inequitable. The current legal scheme will give you at least a basic idea of what the courts consider to be fair on separation. This is particularly important where the parties are considering a release or set amount of spousal support.
Negotiations should be between the parties and their lawyers only. While family members may have views or preferences of their own, including them in the process can lead to trouble down the road.
You may want to limit the term of your marriage agreement. This allows it to be revisited where circumstances change (such as the birth of a child or one party leaving or entering employment) which may effect your entitlements on separation.
During the negotiation and drafting stages of a marriage agreement, the short-term assistance of an experienced family lawyer can help save you the long-term stress and expense of litigation down the road.
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