FAQs Marriage Contracts

Does my marriage contract have to be a fair bargain?

It should be quite self-evident that a marriage contract is in essence a contract. As such, general principles of the law of contract apply. One such principle in particular which may adequately answer this question is the doctrine of unconscionability – the idea that the bargain in a contract ought not to be unfairly one-sided to the point of shocking the Court’s conscience.

With this in mind, it seems a marriage contract should not unduly favor one party’s interests over the other. The problem is that this is the goal of those who insist on entering into a marriage contract. Case law seems to suggest that marriage contracts need to be “fair and provident” both at the time the agreement was made and in the future. Therefore, the best suited answer to question might be, it depends—on the bargain and on the process used to negotiate.