Duhaime's Law Dictionary


Marriage Agreement Definition:

An agreement between two persons in anticipation of or during the marriage, and in regards to rights and responsibilities as they may flow from the relationship.

Related Terms: Marriage, Separation Agreement, Postnuptial Agreement

Also called a marriage contract.

A contract between two partners to a prospective marriage, or even after the date of marriage in which they purport to avoid some statutory regime that would otherwise apply to their marriage, in terms of child custody, support and property.

There are two distinct variants of marriage agreement. One signed before the marriage is a pre-nuptial agreement. If it is signed after the date of separation or in anticipation thereof, it is a separation agreement.

Most typically, although it can go both ways, a prospective wife or husband would seek to opt-out or contract-out of a community of property regime that the jurisdiction in which they propose to marry imposes on a married relationship. It is rare but not unheard of, for, similarly, a prospective wife or husband to seek to cover his marriage with a community of property regime where the jurisdiction in which they propose to marry imposes a separate property regime.

Four points:

  • Provisions dealing with children are usually not worth the paper they are written on as a court will make whatever decision is in a child's best interests at the time of hearing such a court application, with little if any regard to a contract drafted months if not years before.
  • Not all jurisdictions allow prospective married partners to contract-out of all of a portion of the statutory regime they impose on marriages.
  • Signing a marriage agreement after marriage may, or may not impact on the enforceability of the contract. Some jurisdictions may require that such a document, to have force of law as between the parties, be signed before the marriage event.
  • The regular rules of contract law apply to these contracts and some jurisdictions even add a few statutory conditions (eg. witnesses, etc.). A marriage agreement can be set aside for any of the typical array of contract issues that might apply, such as misrepresentation, deceit or duress.

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