Ten Reasons a Pre-Nuptial Agreement May Be Unenforceable

Dick Price, in his recent blog, lists ten reasons why a pre-nuptial agreement might not be enforceable. He quotes Stephen Worrall from his blog. An "unenforceable" agreement means it's not worth the paper it's written on! The courts will not enforce the terms of the agreement. You should use the agreement to start a fire because it's otherwise useless.

Just tear it up!contract torn up

 Here is their list

* No written agreement
* Not properly executed
* You were pressured
* You didn't read it
* No time for consideration
* Invalid provisions
* False information
* Incomplete information
* No independent counsel
* Unconscionability

Although Dick and Stephen are writing about Texas and Georgia law, the same is true for Ontario.

The most important aspect of a marriage contract or pre-nuptial contract to ensure it is enforceable is that the negotiations are done properly. Courts like to respect contracts but only if both parties knew what they were doing when they signed the contract and did it voluntarily. A marriage contract or pre nuptial agreement or co-habitation agreement is really just a contract between two people so is treated the same way by the judges.

There should be full disclosure of all assets and income for both parties. In fact, I list the major assets and income in the agreement itself so there is no question that it was disclosed. If assets are not fully listed, it is possible that your spouse may say "If I knew my spouse was worth so much money, I would not have signed the agreement".

I also strongly recommend that both parties have independent legal advice. Otherwise, your spouse might try to wiggle out of the agreement on the basis of "I didn't understand  all that legal mumbo jumbo."

Ontario courts are certainly willing to respect pre-nuptial agreements regarding property issues. A typical agreement might say "property in my name is mine, property in my spouse's name is my spouse's property". These types of agreements are usually respected if the agreement has been entered into voluntarily and there has been full disclosure.

The courts are less willing to respect an agreement that results in the waiver of spousal support. Judges have a difficult time seeing one spouse impoverished when the other is wealthy. If they can find a way to set aside an agreement that waived spousal support, they often will do it.

The best advice about pre-nuptial agreements is talk to a lawyer and do it properly.

 

Pre-Nuptial Agreement for Archie and Veronica?

Comic book chPre Nup Agreement with contract and pen visiblearacters Archie and Veronica are getting married. In the article, "Do Archie and Veronica Need a Prenup," by Globe and Mail writer, Roma Luciw, she poses the question, "Will they get a prenuptial agreement?"

It's a good question.

A pre-nuptial agreement (also called a marriage contract or a cohabitation agreement) states what will happen should the couple separate. It settles issue such as the division of property in advance of any issues arising and often in a way that is different than a judge would do.

Veronica is the more wealthy of the two so she would be wise to have an agreement in place. In my opinion, family law in Ontario is unfair because if Veronica owns a home on the day of marriage that she and Archie move into as their "matrimonial home" and then they separate, Veronica will have to share the entire value with Archie. It won't matter that she had, for example, $100,000 of equity built up in the home when they got married. She has to share the whole value of the home with Archie. This is not the case with other assets, just the matrimonial home. I have never thought that was fair.

I can imagine that Veronica's father may be very skeptical of Archie's motives. He may accuse Archie of being a  "gold digger". For that reason, Archie may want to have a pre-nuptial put in place just to show that he is marrying Veronica because he loves her (and not just her money).

Pre-nuptial agreements are useful if you want to protect a particular assets such as a family business, or you own a home that you and your beloved intend to occupy. Sometimes older couples who marry get pressure from their adult children to enter into an agreement so they won't lose their "inheritance" to the new partner if Gramma and Grampa separate.

A co-habitation agreement is a good idea if you are planning on living together instead of marrying. Common law separations can be complicated since the law is so ambiguous as to the rights of each person upon a separation. An agreement in advance (when you both still love each other) is a good idea so you both know what will happen should you separate.

By the way... Luciw reports that the creators of Archie say there will be no pre-nuptial agreement. I guess everyone is just hoping Archie and Veronica live happily ever after.

I've heard that one before!