When Do I Need It?
As I always explain to my clients, you don’t need a marriage contract while happily married, you only need it when things go wrong.
Why Do I Need It?
Now that many people get married much later in life having accumulated certain assets which they do not want to share with their spouse if the marriage breaks down and when Internet dating and “mail-order” brides and grooms become more and more popular, the properly prepared marriage contract may be your best and often only protection against property and spousal support claims which may take years to litigate at draconian legal rates.
What Does It Get Me?
Essentially, what the marriage contract allows you to do is to exempt certain issues pertaining to your marriage from the general application of the law. Most frequently such issues include division of property, spousal support, rights on the death of one of the spouses, etc. For instance, marriage contracts often provide that any property acquired by the spouses whether before or after their marriage will always remain the property of the spouse who owns it rather than is subject to regular equalization rules. They may also contain clauses in which the spouses waive their right to claim support from each other in the event of a marriage breakdown. Alternatively, such contracts may provide for a specific mechanism of division of specific property or provide for a set amount and duration of spousal support which may depend on the number of years the spouses have been married.
While the law does not permit waiver of child support to your own children whether in the marriage contract or otherwise and the provisions in the marriage contract regarding custody of children of the marriage are not enforceable, in the event that your spouse already has children from the previous relationship, you may be well advised to provide in the marriage contract that under no circumstances will you stand in place of a parent to these children and will not be required to pay child support to them in the event of the breakdown of your marriage. Why? Because under our law, you don’t have to be a biological parent in order to be required to pay child support. As long as the court finds that you treated the children as your own (or stood in place of a parent), you may end up supporting them for a long, long time.
It is crucial for any marriage contract to be valid that both spouses exchange full financial disclosure. In other words, if one spouse is not fully aware of the true financial situation of the other, such spouse can successfully challenge the validity of the marriage contract and if the court sets the contract aside, then the matrimonial issues will be determined by the application of general family law principles.
Also, each party to the marriage contract should receive independent legal advice prior to signing the contract. This means that one lawyer cannot represent both parties to the contract. Typically, one of the spouses retains a lawyer who prepares the marriage contract, then it is provided to the second spouse who reviews it with his or her own lawyer and, if satisfied with its contents, signs the contract.
The task of any lawyer providing independent legal advice is to explain to the client the law, the provisions of the contract and how they alter the otherwise applicable legal rules, nature and consequences of the contract and to ensure that the client fully understands the contract and is entering into it voluntarily.
What If My Spouse Does Not Speak English?
An issue that often accompanies independent legal advice is the language in which such advice is provided. If your spouse does not speak English, receiving independent legal advice in English will obviously have no value to him or her and will detriment your interests since the marriage contract can be set aside on the grounds that your spouse simply did not understand what he or she was signing. Therefore, it is most preferable that the lawyer providing independent legal advice speaks the client’s language and is able to directly communicate with the client rather than rely on interpreters. For example, I often provide independent legal advice to people in Russian and Hebrew.
What If My Spouse Does Not Want To Go to a Lawyer?
In some cases, however, one of the parties may refuse to spend money on independent legal advice. In such situations, a proper waiver of independent legal advice must be included in the marriage contract to avoid a future claim of the type “I did not know what I was signing”.
We Are Not Getting Married, Do We Need an Agreement?
More and more people choose to cohabit without officially marrying each other. While the applicable rules on a breakdown of such relationships are not the same as in the case of legally married spouses, your common-law spouse may well be in a position to claim spousal support or a share in your property. How can you try and protect yourself? Well, just like in the case of marriage, you would enter into a marriage contract, so too, in the case of a common-law relationship, you can enter into a cohabitation agreement.