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Marriage agreements by any name must be valid legal contracts

You and your partner have decided to marry. In an age when divorce rates compete with marriage as a lifestyle choice, your families and friends rush to advise that some kind of customized agreement between you be written up. Whether known as prenuptial, postnuptial or marriage agreements, Ontario courts recognize them as contracts under the law, specifically domestic or marriage contracts.

The evolution of the cultural and legal language surrounding marriage contracts came about in the era that saw the emergence of new legal arguments such as "palimony" and the sudden rise in the numbers of women, primarily, in self-sustaining or high-paying jobs. The original legal principle governing prenuptial agreements had been largely based on financial protection, in cases where one spouse's assets were disproportionately higher than the other's. With people marrying later in life or delaying formal marriage, such cases became less prevalent, and marriage agreements were drawn up for reasons other than finances.

Such an agreement should be undertaken as soberly as a couple undertakes formal marriage. Ideally, the agreement should be finalized in writing prior to the marriage ceremony, and, in the areas covered, full disclosure is essential. The couple must be aware of what can be included and what, by law, may not be included in their agreement. It can have no provisions, for example, for child custody or access, but can outline property or inheritance exclusions, or even behaviour expected during the marriage.

The importance of conforming to all the laws governing contracts cannot be overstated. Ontario courts regard such contracts seriously unless they have been signed under duress or are blatantly unfair -- viewed as unconscionable -- and can be deemed unenforceable. For this reason, parties signing marriage agreements might each secure their own respective family law lawyer to ensure that what is put in writing respects all legal requirements.

Source: findlaw.ca, "What is a prenuptial agreement and is it enforceable?", Accessed on Nov. 11, 2017

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