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When can your prenuptial agreement be declared invalid?

Prenuptial agreements are becoming more and more common between couples. A prenuptial agreement formalizes the understanding between the soon to be married couple regarding which of their assets will be declared marital property. Prenuptial agreements are usually drawn up to prevent the party with more assets from having to part with more of it if the marriage does not work.

However, parties must bear in mind that there are several reasons why a court might refuse to enforce a prenuptial agreement. When entering into a prenuptial agreement, it is essential that both the husband and wife disclose their assets correctly. If the husband or wife does not declare the true value of their assets, then the prenuptial agreement can be set aside on grounds of fraud.

Consent and capacity are two major requirements for a valid contract. If the consent of one party to the contract was compromised due to coercion or duress, then the agreement cannot be enforced. Also a prenuptial agreement where either party consented to it without understanding the terms of the agreement can be set aside by a court. These situations can occur if one of the parties was ill or was under the influence of drugs.

Quite often the enforcement of a prenuptial agreement can be questioned on technical grounds. So, a poorly drafted agreement can be invalidated by a court. And sometimes the court refuses to enforce a prenuptial agreement because it appears too lop-sided or unfair to one party.

Therefore, a prenuptial agreement should be executed by both parties in front of witnesses. A court will also consider whether both parties had the advice of independent counsels before they signed the agreement. A lack of independent counsel raises concerns as to whether that person was coerced into signing the agreement.

Source:, "Five Reasons Your Prenup Might Be Invalid," Jeff Landers, April 2, 2013

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