Kay Rhodenizer – March 2019
It is probably more common for couples to sign cohabitation agreements or marriage contracts before they begin to live together, there is no legal reason a marriage contract can’t be completed later.
Regardless of when a marriage contract is signed, it is important it be negotiated and written up in a way that makes it legally enforceable.
Legal enforceability has three distinct sub-categories:
[1] Meeting the “technical” legal requirements to create a valid contract.
[2] Circumstances of the negotiations: Did each party know enough about the other’s financial circumstances to make informed choices? Was each party able to negotiate (and/or have a lawyer help them negotiate) so there was no unequal bargaining power or other pressure on a party to complete an agreement that was unfair to him or her?
[3] Content: Negotiating terms a Court would regard as fair if one party later tries to challenge the contract.
My future blogs will talk more about negotiation circumstances and content. This blog gets the less exciting topic of technical requirements out of the way!
In Nova Scotia, section 23 of the Matrimonial Property Act sets out the technical requirements and defines what a marriage contract is, namely, an agreement where a couple agrees on their respective rights and obligations:
- While married
- If they separate
- If the marriage is annulled or dissolved
- If either spouse dies.
Section 24 states that a marriage contract will be void unless it is in writing, signed by the parties and witnessed.
Section 25 allows someone under 19 to sign a marriage contract, although it must be approved by the Court.
Technical requirements to enter into a marriage contract not set out in the Act also include “capacity.” Capacity means the ability to understand what a marriage contract is, the terms being agreed to and any legal advice that may be received.
This blog is not intended to be a comprehensive treatment of this topic or legal advice. Every case turns on its specific facts so if you or a family member require more information on marriage contracts, our MDW Law lawyers can assist you.