Diane McInnis, Barrister and Solicitor
The most important thing to ensure that an agreement is valid and enforceable is to be certain that each person has had independent legal advice and fully understands the nature and consequences of every term in the agreement. I cannot count the number of times a client has come to my office after separation, with a copy of the marriage contract, telling me that he or she didn’t have independent legal advice and didn’t fully understand the implications of the agreement or that the contract was presented to him or her only days before the wedding. There is enormous pressure on the person being asked to sign an agreement, as though his or her loyalty or commitment to the marriage is being questioned if they refused to sign.
It takes little imagination to see how this could result in a strain on the relationship in the very early stages, when both partners are looking forward to their future together.
It seems to me the most appropriate way to deal with a marriage or cohabitation agreement is to use a collaborative approach. Both partners meet with their counsel at a four way meeting to have a frank discussion about the reasons for the agreement and the potential pitfalls of signing the agreement so that the couple enters into the agreement fully committed to its terms and both can rely on it for making future decisions. It takes time to get it right. I will not act for a client on a marriage contract or cohabitation agreement without a four way meeting, and allowing the time for the parties to reflect on the draft before signing.
Do’s and don’ts for the negotiation of a marriage contract: