Some may think entering into marriage contracts is a recent trend. However archeological evidence shows the contrary: marriage contracts have been around for quite some time – since ancient Egyptian times. These ancient Egyptian marriage contracts were quite popular amongst women at the time. In fact, some men were given “8-foot long” marriage contracts! Because men often had multiple wives, marriage contracts were seen as a way for women to ensure that they were financially secure upon a breakdown of the marriage. Often these marriage contracts were highly advantageous for women with little regard for the husband’s rights.
However, modern law will often not enforce contracts which would allow one party to have such a large advantage. When a court is assessing the validity of a marriage contract, one of the factors to be considered is whether the marriage contract was entered into under undue pressure. The court will also consider whether the marriage contract is unfairly advantageous to one party, and unconscionably detrimental to the other party. Because of this concern, it is common practice for each party to obtain independent legal advice prior to signing the marriage contract. Each party will have their own lawyer review the marriage contract and advise them on whether the marriage contract is fair or whether their rights/interests should be better protected.
- When giving independent legal advice on a marriage contract, counsel should do more than just thoroughly review the terms of the contract. It is also essential to obtain adequate information before advising the client. This information will include: age of the parties; family history (previous marriages, children, dependants) medical needs, financial status, career goals, business interests,debts, cultural expectations of the marriage etc.
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