Marriage contracts: protection, not pessimism

Raising a marriage contract is awkward because it sounds like planning for failure. A more useful way to see it: you are deciding terms while you are calm, informed and fond of each other, rather than while you are neither.

What a marriage contract can do

• Define what happens to property brought into the marriage
• Protect a business or professional practice
• Protect an inheritance or an expected inheritance
• Address spousal support, including waiving or limiting it
• Clarify responsibility for debts
• Set out what happens to the matrimonial home

What it cannot do

It cannot determine parenting arrangements for children — those are always decided on the child's best interests at the time. It also cannot remove a spouse's right to possession of the matrimonial home.

What makes one enforceable

• In writing, signed and witnessed
• Full and frank financial disclosure by both parties
• Independent legal advice for each party
• No duress, and adequate time before the wedding
• Terms that are not unconscionable

Contracts fail most often for one of two reasons: disclosure was incomplete, or the agreement was signed days before the wedding when one party could hardly refuse. Both are avoidable by starting months rather than weeks ahead.