But material fairness always plays a role when the court verifies an agreement. First, extreme substantive inequality can be a problem in itself. For example, if the agreement is so different that it provides public assistance to a spouse, the court may not be able to fully enforce the agreement. If the court has to decide whether one spouse is assisted by the other and a spouse is supported by the public, it is likely that the spouse will choose the former. The validity of a marriage agreement (or, technically, antenuptial agreement) consists of two elements: (1) procedural fairness; and (2) equity on the merits. When a court finds that the agreement is inequitable, either procedurally or materially, it can cancel all or part of the agreement. As has already been said, the courts pay much more attention to the fairness of proceedings than to material injustice. As long as fair procedures are in place, the courts are prepared to apply agreements that contain significant substantive differences. In particular, agreements that renounce the essential activities of the parties or who renounce support altogether are often applied in court as long as they have been signed freely and voluntarily.
obtaining the agreement. In the opinion of most jurisdictions, parties to pre-marriage agreements have confidential relationships. In addition, they are often poorly coordinated with respect to bargaining power. Before maintaining the validity of pre-marital agreements, the courts must therefore be satisfied that the agreements were obtained fairly. As the courts and national legislators describe them, fair agreements are those that the parties voluntarily take after giving themselves financial information. The second most common circumstance in which marriage contracts take place is when parents encourage their adult children to have a marriage agreement to protect their children`s future assets and protect property already granted to their adult children. While it is true that parents can amend the provisions of their estate planning documents to limit an adult child`s access to his or her inheritance, many want additional protection from a marriage agreement. In this case, it is not uncommon for the matrimonial agreement to deal only with assets separate from the parties prior to marriage and assets granted or inherited in the future.
This type of marriage contract may expressly indicate that property acquired and acquired by the parties during the marriage (except by gift or estate) is considered marital property attributed to the surviving spouse in the event of divorce. In this context, an omission may even be left open to a court to rule on divorce. Essential terms of the contract. When disclosing the validity of pre-marital agreements, the courts declare that they will not replace their own ideas about what is right with the provisions of the parties` good business. But neither the courts nor the national legislators whose mandates they must respect are not aware of the material fairness of these agreements. It is an amorphous term that the courts determine on a case-by-case basis. Unfair provisions for the parties do not render an agreement materially unjust and therefore invalidating.