Antenuptial contracts (ANC) can generally contain any provision that the couple wishes.
However, the provision may not be contra bonos mores (against the good morals of the public), contrary to nature, reason, public policy, prohibited by law, or purport to overrule the court’s authority.
These kinds of clauses will be rendered null and void.
In ANCs, clauses cannot be unreasonable, against public policy, or unlawful.
Unreasonable clauses can be seen by:
- Preventing a spouse from working;
- Making a spouse live in an area he or she does not wish to;
- Making marriage disputes subject to arbitration;
- Force a spouse to adopt the religion of the other spouse;
- Declaring that the parties will not live together as husband and wife after the marriage;
- Following the divorce, neither spouse shall have the right to ask for an order of forfeiture or a share of the other’s estate.
Against public policy:
- Clauses which compel the change of religion, gender, race or prohibit any association; or
- A clause allowing the parties to commit adultery.
Unlawful:
A spouse is allowed or compelled to commit a crime by clauses in the marriage contract
Discouragement of infidelity by a clause
In an ANC, can a clause be included to deter a husband/wife from having an extramarital affair in the future? According to case law, this clause must be interpreted in context. If the parties were divorced before because of extramarital affairs.
An example would be: ‘Should A be the cause of a future divorce through an extramarital relationship, he will (denote an obligation on the husband to give the wife a fixed asset, pay her a cash amount, etc.)’
As a case of preserving the marriage by discouraging the husband from continuing an extramarital affair, the court will enforce this clause.
(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please our offices.)
