Engagement And Marriage Contracts
A contract can be either verbal or written between two or more persons which specifies the intention of the parties and to practically govern and regulate the terms and conditions of what they want to materialize, e.g. sale of motor vehicle, furniture and fittings
All contracts must be lawful and fully compliant with the laws of the country.
The contract that we want to elaborate is on an engagement contract, which is a prelude to the marriage contract. Usually, engagements ar conducted amongst families and friends with much celebration and ceremony. An engagement is a contract between two parties’ recording their intentions to marry and this commitment is done before witnesses. It is a permission to enter into marriage and in the days of chivalry, the male was asking the family for the female’s hand in marriage.
Many engaged couples often announce their engagements in the newspapers.
Engagements do have legal consequences, as it is a verbal and sometimes a written contract. When all goes well, then a marriage comes into being and another binding contract comes into operation.
When there is a breach of the engagement and the parties do not enter marriage, then this gives rise to legal consequences of damages e.g. breach of promise whereby personal and financial consequences arise. An aggrieved party can bring a court action claiming for a breach of promise for personal as well as patrimonial damages. E.g. – costs of purchasing wedding clothes and jewelry, cost of wedding cards and wedding preparations as well as for pain, suffering and humiliation.
A marriage contract comes into being when two persons enter into a written contract expressing their desire to enter into a marriage union and to live together and accepting the legal consequences that emanate from this legal relationship.
There are legal requirements to satisfy prior to entering into a marriage contract namely:-
- the parties must have legal capacity to contract or to be duly assisted;
- the parties must be capable of entering the marriage and be free to commit to the marriage;
- the prescribed formalities must be followed of being married before an official marriage officer and in the presence of two witnesses
Most people are swept away with the wedding preparations, the wedding cake and the beautiful dress .They have lost sight that marriage is actually a contract. The vows undertaken in a marriage ceremony govern the relationship of how you are to behave in an ethical and moral manner towards your spouse. As it is a marriage contract, it governs the ownership and distribution of assets and liabilities acquired during the marriage as well as deals with personal consequences.
TELL ME MORE ABOUT THESE MARRIAGE CONTRACTS:-
There are three marriage regimes that a couple need to look at to suit their finances and personal preferences namel :
- Married in community of property –all assets and liabilities are to be shared equally. This means that whatever the party owned before and after marriage is shared equally at the time of a divorce;
- Married ante nuptial contract without accrual – where there is no sharing of assets and liabilities before or during marriage. However, there can be maintenance claims for support and settlements entered into by parties.
- Married ante nuptial contract with accrual – where the assets and liabilities acquired before the marriage are not shared , however, assets and liabilities acquired during the marriage are equally shared.
HOW DO WE KNOW WHICH CONTRACT IS SUITABLE FOR US AND OUR FUTURE PLANS?
- Consult with an attorney for proper and sound legal advice
- Your attorney will take into account all your finances and future plans and he/she will tailor make the contact to suit your purposes and intentions;
- All ante- nuptial contracts must be entered into and registered BEFORE the marriage to have any legal effect.
- Take your financial records and investments as well as debts so that the attorney can give you an informed choice of regime suited to your needs.
- Above all, be honest and transparent with the person you intend marrying
NOW THAT WE ARE ENGAGED AND THE WEDDING DATE IS SET, WHAT DO WE DO IN RESPECT OF THIS MARRIAGE CONTRACT?
- When both persons do not have much assets or liabilities and there is no risk to creditors, then marring in community of property is in order.
- Where there are substantial assets and liabilities and businesses involved, then being married in a ante nuptial with no accrual is pretty much the order of the day. This is to prevent creditors attaching assets of the marriage. Each party manages their own assets and liabilities.
- When both parties have substantial assets prior to the marriage and there is no intention to combine same in a joint estate, however what is built during the marriage will be shared,then the antenuptial with accrual will apply to this scenario.
WHAT ARE THE DO’s AND DON’T’S TO FOLLOW WHEN DEALING WITH THESE CONTRACTS?
- Do make an appointment with an attorney for advice prior to any decision being made.
- When you decide to do an ante- nuptial contract, this must be done with a notarial attorney and the contract is to be registered BEFORE marriage.
- Have the ante nuptial contract with you to show the marriage officer;
- Don’t say that You did not know
- Don’t’ say that you only married him for his money
- Don’t say that I will leave you high and dry and on the street.
Written by Annie Tooray
Partner of Pravda & Knowles
Founder of Total Woman Organisation