What is a marriage? It's been called a blessing, a curse, an institution, and a 'ball and chain.' It's know as the 'ultimate bliss' and 'the 10th circle of Hell.' Sonnets, odes, songs, and mountains of books have been written about marriage.
Relationship advice columnist Ann Landers once wrote, "Every marriage is happy. Its the living together afterward that's the challenge."
Ann is right. Whatever else marriage may be, it's a gamble. It's also contract. So it has become increasingly common for people to enter into the bond of marriage with the caution formerly reserved for big business mergers.
The Eyes of the Beholder
From a religious perspective, marriage is a "holy union." From the state's perspective, marriage is a voluntary private agreement by a man and a woman to become husband and wife. And in the eyes of the judicial system, marriage is a binding contract with specific obligations under the law. And one day, that contract may need to be dissolved.
That's why prenups were created.
Marriage is an emotional and physical union, but it's also a financial union. A prenuptial agreement looks beyond the clear-and-present joy of two people in love. Instead of being 'caught up in the moment,' a prenup makes provisions for life's unexpected twists and turns. It's an important 'insurance policy' that protects both parties from an unknown future.
If you have something that matters to you, it should be protected by a pre-nup.
What Is A Prenuptial Agreement (Pre-Marital Agreement)?
In essence, a prenuptial agreement is a legal document - a contract between the bride and groom - made before they wed. In most cases, it details what will happen to their individual and collective incomes and assets if a death, divorce, or separation occurs.
Who Should Consider A Prenup
A prenup is not a 'test' of love. It should not be seen as 'the easy way out' for people who aren't sure their marriage will last. Instead, a prenup may be looked upon as a security net, a safe place to fall just in case you do.
Celebrities and millionaires wouldn't think of marrying without advice from their attorneys and a safety-ensuring prenup. But what about you? A prenup may be important for you if you...
* Have valuable assets (a home, stocks and bonds, retirement account)
* Own a business or are a shareholder in one
* May receive a large inheritance
* Have children from a previous marriage
* Have elderly parents or loved ones who need financial assistance from you
You may be surprised to learn that a prenup can protect your current assets and your future earnings. You should also strongly consider a prenup
* If one of you is much wealthier than the other
* If one of you will be supporting the other through college
* If you are pursuing a potentially lucrative profession such as medicine
* If you expect a dramatic increase in income because of professional success.
What Should Be In a Pre-Nup
All prenups include certain standard information. This includes the names of the parties, the date of marriage, purpose of the agreement, and a list of children from previous relationships.
Beyond that, it details the terms of the agreement. In other words, the obligations of each party. The terms generally fall under major headings such as
Property division
Support obligations
Household expenses
Matrimonial home
Business interests
Other property
Tax consequences
Estate planning
What Is Its Legal Validity
Until recently, it was not uncommon for prenuptial agreements to be overturned by the courts. Many were struck down for their unreasonable terms or gross inequality. But in a landmark case decided in March 2004, the Supreme Court of Canada upheld a duly executed marriage contract, despite the fact that the terms were unfair.
The court declared that while the terms of might questionable, the drafting of the agreement had met the legal requirements for a valid contract. This is a strong indicactor that the courts are reluctant to interfere in voluntary contracts made by two well-educated adults with legal representation.
Despite the move towards upholding prenups, however, there remain unimpeachable reasons why a prenup may be invalidated.
As a contract, a prenup may be invalidated for the same reason as any contract. Which is to say that it was entered into under duress, because of undue influence, fraud, unconscionability, fundamental breach, by mistake, and so on.
Grounds for invalidation also include failure by a spouse to disclose fully his/her assets and debts at the time of signing. And finally, the agreement may also be thrown out if one spouse did not understand fully the nature and consequences of the prenup. |
