Domestic Contracts: What They Can And Can’t Include (Part 2 of 3)

Romance is amazing and exciting…except when it’s not. Once a relationship becomes serious and two parties marry or begin living together, the potential for conflict and breakdown can never be discounted. Prudent couples remain aware of the risk and can take steps to protect their interests – just in case the pairing doesn’t work out in the long run. Domestic contracts offer a means for couples to create these protections for themselves.

This post is second in a three-part series highlighting what couples need to know about domestic contracts. In part one, we covered different types of contracts and what makes them legally binding. In this post, we examine the meatier parts –the actual provisions within the contract.

Common Terms To Include

For the most part, couples have much leeway in deciding on their own terms. Oftentimes, the parties create these agreements to establish certain ground rules — such as the decision to keep separate finances throughout the relationship.

A couple may also use a contract to make customized arrangements that differ from automatic defaults set out in legislation. In many cases, this involves the division of property. For example, a married couple may decide in advance that if they divorce, instead of automatically splitting the value of the matrimonial home 50/50, they will use a 70/30 split. The parties may further agree that neither one will pay or seek spousal support.

Unenforceable Terms

Even if a couple agrees to certain terms and signs a written and witnessed document outlining their wishes, the terms may not be legally enforceable. For example, although a separation agreement created at the end of the relationship can include decisions on child custody and access, a marriage agreement signed at the beginning of the relationship cannot determine such matters in advance.

In another example, the law prohibits a husband or wife from selling or mortgaging a home without the consent of the other spouse. A marriage contact containing a provision to this effect would not stand in court.

A court may also set aside contractual terms if:

  1. The provision is significantly unfair to one party
  2. Relevant information was withheld by one party at the time of signing
  3. One party was pressured into signing

If you want to leverage the advantages of a domestic contract, get legal help before you sign. It could mean the difference between boosting your protections and unknowingly signing away legal entitlements that you may later regret.

Call us.

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