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Is it possible to draft an agreement that works like a pre-nup?

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Is it possible to draft an agreement that works like a pre-nup, after you are married? If a married couple sign an agreement on their own regarding property division (in case of a divorce), will it hold up in court? Will it be legally binding?

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Stuart Zukerman
8 years ago

A: Yes most prenuptial and or Cohabitation Agreements contain a clause providing that they continue in full force and effect upon and after marriage and are thereafter to be viewed as a Marriage Agreement under the Family Law Act.

Yes Cohabitation Agreements, Prenuptial Agreement and Marriage Agreements are recognized under the Family Law Act and are generally binding on the parties and the court but are subject to a wide variety of Common Law challenges that apply to all contracts (such as claims of Fraud, Duress, Unconscionability, non est Factum, Mistake, Lack of Consensus Ad Item, Negligent Misrepresentation, Undue Influence, lack of or impaired Mental Capacity, the tort of Deceit, etc) and are subject to considerations under Division 4 of the Family Law Act such as: the presence or lack of Independent Legal Advice, failure to make Full & Frank Financial Disclosure, Substantial Unfairness, A spouse taking improper advantage of the other spouse’s vulnerability, ignorance need or distress, a spouse did not understand the nature or consequences of the agreement, etc

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