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What is required for a marriage contract to be legally binding?

Sometimes marriage contracts are contested in Canada courts. When this happens, the courts will review some important factors to judge whether the marriage contract is binding. This article will discuss the requirements for a contract to pass this kind of review.

First, both spouses need to have fully disclosed their financial situations prior to marriage. This means that both sides of the marriage have to tell each other about their liabilities and assets (like bank account holdings, credit card debt and mortgage debt). Second, the marriage contract has to be executed by both spouses before a witness, and the contract has to be written out. Third, the contract cannot be signed under coercion or duress and both sides have to fully understand the implications of the contract. Fourth, because both parties need to fully understand the contract, it is advised that they obtain independent legal advice. This will limit the chance that potential claims of misunderstanding the terms of the contract will be made.

None of the above qualifications will bulletproof a marriage contract from being challenged and subjected to court review. Changes and nullifications of contracts are most common in situations that involve children. In such cases, the court may choose to override the contract in the best interest of the child or children involved, but only if the circumstances warrant it.

Fairness could also be reviewed by an Alberta family court during a contract dispute. If it is determined that one or the other spouse was unfairly treated under a contract, the courts may choose to nullify the agreement. Therefore, it is in everyone's best interest to draft a marriage contract that treats all parties equitably under the law.

Source: FindLaw, "Marriage contract," accessed Feb. 17, 2016

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