All marriages eventually end. Some end in the death of one partner; the rest end in divorce. Most couples in honeymoon phase find it embarrassing or even daunting to bring up the topic of signing a marriage contract (commonly known as “prenup”). After all, it goes against the concept of love that mainstream media preaches. From the perspective of a family lawyer, marriage contract is always recommended, especially in the situation where there is a huge disparity between two partners’ assets. The key to work out a fair and mutually agreed marriage contract is that both parties understands what it entails. This article is to help the reader dispel the common myths around the marriage contract.
Myth No. 1: We have to sign it before the marriage
A marriage contract can be entered into prior to marriage or after marriage but before marriage breakdown. Sometimes, it is created during the marriage when a party obtains a considerable sum of money and wants to protect it or when a party incurs a significant sum of debt. It is imperative not to rush into a marriage contract, as this is a highly sensitive document. Both parties need to take time to fully comprehend their rights and obligations in the contract.
Myth No. 2: It is all about money
Many couples think it must be all about money if the other person suggests signing a marriage contract. The truth is marriage contracts deal with a broad range of aspects in the case of a marriage breakdown, including but not limited to property division, spousal and child support. It can also deal with the right to direct the education and moral training of children and provide a dispute resolution mechanism. Among certain ethnic group where there lacks clear legislation on how to divide certain culturally significant assets, a marriage contract also affords the couple an opportunity to divide the assets according to their own tradition and wishes.
Myth No. 3: I will be screwed over by her/him
A marriage contract is a form of contract, which means all the fundamental principles governing a contract still apply. It is created based on both parties’ mutual consent. In most cases, both parties have their independent legal representation or advice. Any duress, or coercion from any party would invalidate the contract and trigger the application of the applicable laws in the appropriate jurisdiction. The goal of the marriage contract is not to prejudice any one party, but to reach a fair agreement that is consented by both parties.
Myth No. 4: I don’t need to provide my financial documents
Some people think they can just walk into a family lawyer’s office, explain their situation and the family lawyer will draft everything for them. This is over-simplistic. A marriage contract requires both parties’ full and frank financial disclosure which in most cases accompanies the substantiating documents. The law also provides that a marriage contract can be set aside if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the marriage contract was made.
Myth No. 5: We can dictate any terms in the contract
There are certain limitations imposed by the law with respect to the marriage contract. For example, a marriage contract may not limit a spouse’s possessory rights in the matrimonial home; it may not deal with the right to custody of or access to the spouse’s children. A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is also unenforceable. Court may also disregard any provision of the marriage contract if to do so is in the best interest of the child.
Before you bring up the suggestion of signing a marriage contract, make sure you are aware of the potential impact it may have on your relationship. After all, not everyone is readily willing to discuss the heavy “money” topic with their significant other. It is always a better idea to bring it up earlier in the relationship than days before the wedding. If you are contemplating entering into a marriage contract, or having an existing marriage contract and need to enforce or set it aside, please contact our experienced Family Lawyers.
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