27. September 2021
Recently, in some modern Orthodox circles, a movement has emerged to support an additional marriage contract. This is a response to a growing number of cases where the husband refuses to grant a religious divorce. In such cases, the local authorities are not in a position to intervene, both for the sake of separation of Church and State and because certain Halachois problems would arise. This situation leaves the woman in a state of Aginut where she is not able to remarry. To remedy this situation, the movement promotes a marriage contract in which the couple agrees to carry out their divorce, if it occurs, before a rabbinical court. A marriage contract is different from the historical marriage regime, which did not primarily concern the effects of divorce, but the creation and maintenance of dynastic families or a divorce agreement concluded by the parties in the context of the dissolution of their marriage. Marriage contracts in Canada are governed by provincial legislation. Every province and territory in Canada recognizes marriage contracts. For example, in Ontario, marriage contracts are referred to as marriage contracts and recognized by section 52 of the Family Law Act.  Goa is the only Indian state where marriage is legally applicable, as followed by the Portuguese Civil Code of 1867. A marriage contract setting out the ownership regime can be signed between the two parties at the time of the marriage. If a marriage has not been signed, the marital property is simply divided equally between husband and wife.   Even in states that have not adopted up TOAA/UPMAA, such as New York, duly executed marriage contracts enjoy the same presumption of legality as any other contract.
 It is not necessary for a couple signing a marriage contract to use separate lawyers to represent them, as long as each party understands the agreement and voluntarily signs it with the intention of being bound by its terms. There is a strong public policy that favours parties that rank and decide their own interests through treaties.  There are no state or federal laws that require adults with contractual capacity to hire an attorney to enter into a marriage contract such as a marriage contract, with the exception of a California law that requires the parties to be represented by an attorney when support is limited by the agreement.  A marriage contract can be challenged if it is proven that the contract was signed under duress.  The signing of a pre-marital agreement under duress must be demonstrated by the facts and circumstances of the case. . . .