Antenuptial contracts (ANCs) – those lovely documents that mark the peak of romantic frivolity just before marriage. Well, maybe not for most. But ANCs are a vital part of what keeps the romance safe during what is technically a business transaction (another idea that can easily deflate the romantic air surrounding that special day).
ANCs allow couples to keep their financial concerns separate from the romance, allowing both parties to live and love each other freely, without having finances dictate the next steps of the relationship. While an ANC (also known as a prenuptial contract or prenup) is commonly associated with keeping your assets safe from eager hands during a divorce, these contracts also help you safeguard those assets from your partner’s creditors.
ANCs can, however, also dictate the terms of the marriage beyond the division of assets and debt. But while there have been some odd inclusions in ANCs over history, from weight limits to in-law visits, it is advised to steer clear of odd inclusions that may change, as personalities, tastes, and interests evolve over the course of the marriage. There are, however, a few clauses that are entirely unenforceable (never mind discouraged), which may not be included in an ANC.
Clauses that go against the good morals of the public, against nature, reason or public policy, or that are prohibited by law will be deemed null and void if included in the contract.
Examples of such clauses include:
- Prohibiting a person from working
- Limiting residence to a specific area
- Obliging a person to adopt a religion or belief system
- Forcing a change of gender or race, or prohibiting specific associations
While an ANC cannot physically stop a spouse from having an affair, it can strongly deter extramarital activity by setting up the repercussions for such an act in detail (beyond sleeping on the couch and having your wardrobe thrown from an upstairs window).
According to law, ANCs may include a clause that clearly stipulates what payment will be due to the faithful party as penance if their spouse is unfaithful. Such clauses are especially common in ANCs where infidelity was the cause of a previous divorce. These clauses can demand numerous forms of penance, from cash payments to transferring the title deed to the faithful party’s name, and even the cancellation of the ANC itself.
If you need your antenuptial contract drafted or need guidance on which clauses to include to safeguard your future, get in touch with the team at CMM Attorneys.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)