A prenuptial agreement is a contract. Like all other contracts, it must meet certain prerequisites in order to be binding and enforceable. But if those prerequisites have been met, it is nearly impossible to break. It is, therefore, very important that a competent lawyer, independent of your future spouse, who understands both family law and your personal needs, represents you during the negotiation and drafting process.
There are certain things that you cannot contract away in a marriage contract, such as custody or access rights to children, or certain rights surrounding the matrimonial home. In most cases, the inclusion of such unenforceable provisions will not void the entire contract, but just those particular sections.
The idea of marriage is a romantic concept, and during the pre-marriage period, people can be very idealistic about the future. Unfortunately, many marriages end in divorce. Keep in mind that if you find yourself in the middle of a divorce some time down the road, you will want to rely on your pre-nuptial contract. You may not be able to find a job, or a job that will provide you with the amenities you have enjoyed during the marriage, or you may be unemployable because you gave up your career to look after the home and/or the children.
If you have contracted away your right to share in the money or assets your spouse has acquired during the marriage, you will be sorry that you did not carefully consider the implications of what you were signing when the pre-nup was put in front of you.
Steven Bookman is a lawyer who practices exclusively in the area of family law. With offices in central Toronto, his practice also focuses on mediation and arbitration as alternatives to disputed divorces.