Agreements Entered into During Marriage - How Valid are they?

Does the law recognize agreements I entered into with my other spouse?

The law recognizes marital agreements, as there is nothing wrong in parties, who are about to be married or are seriously contemplating marriage, agreeing on various matters that are to take place after marriage.

However, a marital agreement is unlawful if it negates the marriage or resiles from it. To elaborate, spouses cannot enter into a marriage where they agree they would never commence marital cohabitation as man and wife, but continue to live separately as unmarried persons. Otherwise, this will make a mockery of the law regulating marriage.

The next issue is whether the agreement has fulfilled the contractual requirements. There must be intention to create legal relations. Intention is expressly found when spouses put their agreement into writing or engaged a lawyer to help them reach an agreement. It can also be readily inferred when the tenor of the marital agreement is serious and the content is reasonably clear. Also, other legal doctrines and requirements must be complied with. Our divorce lawyers can advice you on your position.

What matters did your agreement touch on?
The degree of court’s intervention in agreements depends on whether the matters agreed to is specifically regulated by law.

For agreements that touch on matters not specifically regulated by statute, parties have full autonomy.

However, for agreements that touch on matters specifically regulated by statute, parties have less autonomy, and courts may vary the agreement in accordance with the law. This includes agreements on the maintenance of wife or children, custody of children and division of matrimonial assets on divorce.

Our divorce lawyers can advice you on your position with respect to the validity of your agreement.

Was your agreement made before or after marriage?
Postnuptial agreements entered into after the marriage has failed, caters to the immediate needs and desires of the parties. Meanwhile, prenuptial agreements cater to some future possibility of breakup, which the couple neither wants nor expect to happen. Thus, courts often place greater weight on postnuptial agreements.

The court has stated that it will not lightly depart from a postnuptial agreement, since parties to a marriage are in the best position to determine what is a just and equitable division of the matrimonial assets. Parties know each other’s direct and indirect contributions to the marriage, and know how much each asset is valued at. However, the ultimate decision still lies in the courts. Our divorce lawyers can advice you on the merits of your case.