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Lee Block

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Divorce And The Marriage Contract

Posted: 10/26/11 03:15 PM ET

One of the articles I wrote for The Huffington Post regarding alimony brought up a lot of emotion from women who have been raising children and feel they deserve to be paid for the service. It seems that some feel that marriage is a contract and when that contract is broken, the person who broke the marriage must pay -- and pay dearly.

It may sound surprising, but plenty of cultures do have marriage contracts. For instance, in Judaism, it is called a Ketubah. The Ketubah, as described on Judaism 101, spells out the husband's obligations to the wife during marriage, the conditions of inheritance upon his death, and obligations regarding the child support. It also provides for the wife's support in the event of divorce. There are standard conditions; however, additional conditions can be included by mutual agreement.

In Judaism, they believe that the Ketubah will discourage the man from divorcing his wife, because of the financial obligation that is set upon them with this contract. Interestingly enough, the divorce rate for Jews is around 30 percent.

Followers of Islam take their marriage contracts very seriously. In order for the marriage contract to be considered legal, some conditions must first be met. Both parties must be adults and sane, and the man and woman being married cannot have been breastfed by the same woman. According to Islamweb.net, the marriage contract must follow certain pillars, including offer and acceptance. For most scholars, the offer must be from the woman's side and the acceptance from the man -- the prospective husband and the guardian of the woman. Some scholars count the presence of witnesses and dowries among the pillars as well.

Research conducted in the early 1990s by the late New York-based sociologist Ilyas Ba-Yunus estimated the North American Muslim divorce rate stood at 31.14 percent, three times higher than the highest divorce rate in Muslim countries, which was 10 percent in Egypt and Turkey. According to 2008 figures, the divorce rate in Islamic countries was 20 percent.

In American society, we call a marriage contract a prenuptial agreement. The prenup is a contract between two people who are about to wed that spells out how assets will be distributed in the event of divorce or death. Rather than being required by religious or other beliefs, however, prenups are often used between two wealthy partners, and are a common pre-requisite for celebrity marriages.

Of course, others may view wedding vows and the exchange of rings as a form of a marriage contract, with the marriage license serving as the documentation. Regardless of what you consider a contract, the question remains: are marriage contracts good or bad? Do they add a layer of protection and security to the marriage, or are they viewed instead as binding, restrictive documents that leach all of the romance out of the union? Those are questions that must be answered by every person who decides to enter into marriage. What works for some certainly doesn't work for others, but regardless of what you decide, don't let others make you feel bad about your decision. It's your life and your marriage, and if you opt for a religious-based contract or prenup agreement, that's your business.

Things to consider when drafting a prenuptial agreement:

That being said, if you go the prenup route, you may want to consider inserting a protective clause into your prenup or contract that outlines financial support in the event of divorce. With the divorce rate continuing to hover around 50 percent, it's no wonder that married couples want to feel more secure in their decision.

Your prenup may outline several conditions that must be fulfilled should one person be at fault for ending the marriage. That way, if those conditions aren't met, you have documentation that will give you additional legal recourse. It's a rather stark way of looking at the situation, yet it's practical, too.

And lastly, be smart. If you're entering into a prenup, it's only smart to have your own attorney take a look at it and make sure you're protected. Taking steps like this now can potentially save you heartache (and money) in the future. The process gives new meaning to Stevie Wonder's "Signed, Sealed, Delivered," doesn't it? But in the business world, contracts are entered into all the time -- and a prenup is often just smart business.

A piece of advice? Consider a marriage contract or prenup from a practical point of view instead of demonizing it as a wholly unromantic document. A marriage is about the merging of two people and their lives, but it's also about protecting yourself and your assets. And there's absolutely nothing wrong with watching out for me, myself and I. If you don't, who else will?

 

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