Domestic contracts have become increasingly common in recent years. Between cohabitation being more common and later marriages that involve significant separate property, more people are in a position to benefit from the protections of contracts, including a prenuptial agreement.
Having a prenuptial agreement in place can give parties clarity and peace of mind, as long as the document is legally valid. If it is not, the courts may not enforce it. Avoiding unenforceability issues can be easier when you avoid the following common problems.
- Unlawful terms – There is a wide range of matters parties may wish to address in a domestic contract. However, these agreements cannot include unlawful terms, such as custody of or access to a child, child support provisions and certain chastity clauses. Depending on the details of the contract, the courts may set aside just the clause in question or the entire agreement.
- Lack of legal representation – Both parties should have separate legal representation before signing a prenuptial agreement. Having independent legal counsel can protect against allegations of coercion, duress and unconscionability. It can also help parties negotiate and review the terms until the agreement meets their needs and is legally sound.
- Improperly drafted – The Family Law Act states that domestic contracts must be in writing. They must also be signed by both parties and in front of witnesses. Both parties must also be legally fit to enter into a legal contract. If your prenuptial agreement misses any of these requirements, it is unenforceable.
- Fraud – If either party failed to disclose significant assets, misrepresented himself or herself, or was otherwise dishonest, the courts may not enforce the contract.
Marriage contracts may not be romantic or enjoyable to discuss, especially if you are about to commit to spending your lives together. However, having these discussions now can allow you to make thoughtful, fair decisions, as opposed to making them when you may no longer like or trust your partner.
And avoiding these common missteps when you draft and complete your agreement can ensure it is binding, should you ever need it.