All About Marriage Contracts
In various cultures and legal systems, a formalized marriage contract has been utilized to define the rights and obligations of the parties during the marriage as well as upon its dissolution. Whether in the form of a prenup before entering marriage or in the form of a postup after marriage the marriage contract governs the economic interaction of the parties during their union and upon dissolution. In some jurisdictions, such as certain states in the U . S., Canada and Israel, a marriage contract must be formally executed to be enforceable. On the other hand, in many countries marriage contracts are not required but are formally registered and enforceable according the governing laws. Depending on the governing jurisdiction, the rights and obligations of the parties under a marriage contract will likely be governed in accordance with the conflict of laws rules.
Contracts Prior to Marriage
A prenuptial agreement is a contract between the parties to a marriage, made before or at the time of marriage but prior to entry of a judgment of divorce. The agreement addresses the financial obligations of the parties to each other during the marriage and at its termination, as well as the disposition of financial assets, custody of children and other issues. The agreement may also address what constitutes marital vs. non-marital property. Throughout the years, these agreements have been referred to by many names, including "anti-nuptial," "premarital" and "predivorce" agreements.
Under the law, prenuptial contracts must be in writing, signed by the parties and voluntarily entered into. When I represent either party in connection with a prenuptial agreement, I always insist that they consult with separate independent counsel and that the terms of the agreement are fair and reasonable under the circumstances.
Marriage Contracts After Marriage
Postnuptial agreements have been valid in New Jersey since 2008. They are similar to pre-nuptial agreements, but unlike pre-nuptial agreements, a post-nuptial agreement is one made after the parties have been married. Again, as with pre-nuptial agreements, the timing of this agreement is very important. It is best if the agreement is drafted and signed well in advance of the anticipated divorce so that the spouse against whom you may ultimately file for divorce does not feel hurried into agreeing. Also, it must be signed at a time when the parties are able to adequately consider what it is they are agreeing to. Furthermore, it should not be brought up during the heat of an argument.
Postnuptial agreements should also include provisions relating to division of property and debts; compensation; alimony; and custody. It is also important that the agreement contain a fair and realistic plan for the future so that it can be upheld as a contract. The postnuptial agreement may provide for the parties’ assets to be distributed equally during their marriage in the event of divorce.
Postnuptial agreements are also helpful in situations in which one party places his or her assets in a trust to benefit the other spouse and his or her children from a prior relationship during the marriage. This type of agreement can help protect these assets from becoming commingled during the marriage and indiscriminately divided in the event of a divorce.
Contracts for Cohabitation
Cohabitation agreements are a type of contract made by couples before moving in together to outline how assets, debts, and expenses will be managed during the cohabitation period. Any partners, whether same-sex or otherwise, can sign a cohabitation agreement before living together to avoid future disagreements about property and finances.
When properly drafted and preserved, a cohabitation agreement provides legal protection to the partners. Generally, a well-crafted and executed Cohabitation agreement is not determinable until the contract language itself is ambiguous. It is inappropriate for a court to assess the relative differences in income or property accumulation between the parties when evaluating the enforceability of a cohabitation agreement. Courts in Connecticut recognize that parties to a cohabitation agreement each have an equal opportunity to enhance their financial position. The parties should be given a chance to demonstrate their contract with clean hands.
Depending on the situation of the different cohabiting individuals, a cohabitation contract can be adapted to be temporary, like a lease in a rental space, or it can be focused on financial separation several years down the road if conditions alter. Cohabitation agreements typically address what happens to property and debts when partners separate. The agreement may initially be temporary, but it can be renewed at any time. If all information contained in the agreement was fully disclosed, it can then be an enforceable document.
If partners are seriously considering moving in together, they may wish to consult an attorney knowledgeable in what different types of marriage contracts can do to protect their interests during and after the cohabitation period. Unless an agreement providing otherwise is executed, Connecticut courts consider unmarried cohabiting adults as possessing opposite interests in property.
Marriage Contracts for Civil Unions and Domestic Partnerships
A civil union or domestic partnership contract is essentially a hybrid between a marriage and a domestic non-marital partnership. It creates some of the benefits associated with marriage without creating a full marriage. In general, these contracts afford the parties a presumptive right to alimony (but not in all states), to property and asset division (to varying degrees , depending upon the state), and to custody and parenting time. While living under a civil union or domestic partnership, parties may be recognized as being married for the purposes of taxes, health insurance, and child support. However, once the parties have separated, they have limited ability to access the benefits afforded to married spouses.
Marriage Contracts Within a Religious Context
Religious marriage contracts are generally quite simple, in that they do not obviously deviate from the general form of the contract of marriage as prescribed by the civil law. They usually simply regulate the personal obligations of their authors towards one another (and, in certain cases, towards their children).
The contract of marriage in the Jewish tradition, the Ketubah, is still commonly used these days, particularly among the observant communities. It is entered into on the occasion of the marriage, after the civil marriage has been established.
Typically it stipulates an amount of money that a husband must pay to his wife if he is guilty of a marital transgression, e.g. adultery or divorce.
It further sets out a number of obligations which both partners, of course, have in any event. However, failure to comply with these prescribed duties may afford the innocent party a cause of action for damages against the partner in breach or in favour of a claim for divorce.
The Ketubah will then serve as evidence of the stipulations made by the parties in favour of pursuing such action or in argument to deprive the guilty party of proof of their discharge by virtue of the leadership of religious institutions or by a rabbi in the religious courts.
It must be noted that the Ketubah cannot in itself give rise to any cause of action or ground of divorce. It merely provides evidence of an obligation between the parties and thus is used as sustained support in future legal proceedings as is evidenced the case of Marcus v Marcus 1982(1) SA 108 (W).
Contracts Under Customary Law and Common Law
Marriage may be contracted by custom in certain regions, particularly in some areas of the Eastern Cape such as Transkei and parts of Swaziland. The practice in most instances has been to pay what is termed lobola or roora to the wife’s family for which typically a number of cattle would be given. The payment of roora has been the end of the contractual relationship in many instances, however the system is now fading. In many instances a couple were considered married when engaging in the customary practice of living together as husband and wife once the roora was paid. The system had many variants ranging from paying nothing to handing over livestock and money or clothing without any real fixed value being placed on each item. The essence of marriage in these circumstances has always been the consent of the parties and the family. It has become significant in this context that the Natal Code of Native Law, promulgated in 1843, recognised the suits for amendment or restitution of such contracts within the Courts.
Purely English law in South Africa has not recognised such a system of marriage. The Native Administration Act 38 of 1927 however empowered native authorities to confer the status of husband and wife upon persons who were living together as husband and wife. The status was conferred by registering the marriage in the presence of the headman and two witnesses. This registration was accepted at law as a valid marriage.
A customary law union is recognised in terms of the Recognition of Customary Marriages Act 120 of 1998. The Act defines a customary marriage as a marriage concluded in accordance with customary law. There is no distinction drawn between those marriages which have been registered in terms of the Act and those that have merely been concluded. In both cases, the essential elements of a valid customary marriage in accordance with section 2(1) of the Act must be met, which are: The Act also provides that if a customary marriage does not comply with the provisions of section 2(1) it is invalid. Since the passing of the Act, the courts have held that it is unnecessary for the parties to comply with sections 3 and 4 (which relate to registration requirements) for a common-law marriage to exist. Accordingly, the requirements of section 2(1) of the Act are to be applied to couples residing in the Republic, whether their marriage is registered or not. Any contractual arrangements made under any foreign law will be excluded from the purview of the Act in terms of section 5. If such arrangements do not comply with the provisions of the Act, they will be regarded as invalid.
The courts have recognised that there may be occasions where the parties conclude a common-law marriage overseas which does not comply with the provisions of the Act. Such unions are valid. Because the marriage in question does not comply with the provisions of the Act, a customary law marriage is said to exist in its place. Common law marriage does not require a certain form such as registration or a document. However parties do not experience a great deal of problems connecting with their relatives or other societies if they are married in accordance with the common law. There may be a situation in which relatives or influential societies may not recognise the ANC which is especially important when it comes to inheritance of property. In this instance, the foreign customary law will be valid.
Selecting the Appropriate Contract
The decision to enter into a marriage contract or not can be a daunting one. Choosing the type of marriage contract that is right for you can also be just as challenging. There are a number of factors that one should consider when contemplating entering into a marriage contract. Have you given consideration to whether or not you wish to have a long-form or short-form agreement? There are of course advantages and disadvantages to each. In many cases, long form agreements contain detailed schedules outlining the specifics of the division of property and support. A long form agreement may be advantageous where for example there is real estate involved or if either spouse owns a business or a professional practice. A short form agreement is generally more limited in its scope. Further, it is important to understand what assets will be included as property to be divided on separation and what debts you may be liable for if you die. This will allow you to tailor your agreement appropriately. In determining what type of agreement you should enter , you may also have to consider whether there are provisions under both the Family Law Act and the Succession Law reform Act that you wish to include depending upon your individual circumstances. The best way to protect yourself however, from future family law claims is to ensure that you receive proper independent legal advice. Legal advice is essential to the validity of any marriage agreement. The onus will be on you to prove that you received independent legal advice if you wish to enforce the terms of the agreement against your spouse. If you fail to receive advice from a lawyer, the agreement may be unenforceable against you. There is no one type of agreement that fits everyone’s needs. Rather, it is always important to work with your legal representative to determine what your specific needs are to tailor an agreement accordingly.
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