15/02/2018 0 Comments
Reasons Why a Prenuptial Agreement May Be Unenforceable
A prenuptial agreement, also known as a cohabitation or marriage agreement, is an agreement made between two parties setting out how property will be valued and divided if the couple were to separate. While circumstances of separation are not something a newly engaged couple generally likes to think about, protecting yourself in advance can be crucial to a “fair” outcome in the event of separation. It can further save the time and cost of going through a litigious divorce if the relationship falls apart.
Courts generally tend to respect marriage agreements since there is an assumption that each party had significant comprehension, legal advice and time to consider the agreement before entering into it. However, even where a marriage agreement is contemplated and signed, there are circumstances under which a court may invalidate the agreement. The court may set aside the agreement if it is significantly unfair to one party or if one party failed to disclose adequate and accurate information.
Standard of Proof
The Claimant must prove to the court on a balance of probability that either the agreement was signed under duress, coercion, undue influence or that the Respondent failed to provide complete disclosure generally on a financial basis.
In Friedl v Friedl, 2008, BCSC 1222, the husband had his 5-month pregnant partner sign a marriage agreement, which she was not given an opportunity to review alone or with independent legal advice. The court found that since the wife did not want to have her child out of wedlock and she was affected by the stresses of being coerced to sign an agreement well into her pregnancy without the opportunity to seek legal advice, the marriage contract was unenforceable. The court found that the circumstances surrounding the signing of the contract were not outweighed by any benefits within the contract. The contract provided for a settlement of $6,800 per each year of marriage when the husband made over $750,000 per year. This was exacerbated by the fact that the wife gave up her career to look after their child and thus reduced her earning potential.
The court has also found that duress/coercion is present in the form of threatening to divorce a partner for failure to sign the agreement. For example, in Jasinski v Jasinski, 2006 BCSC 878 (CanLII), an immigrant husband brought his wife to Canada knowing she did not speak English and did not have any family or friends to rely upon. After he became paranoid that she was only in the marriage for financial reasons, he presented her with a marriage contract to sign under the threat of divorce. She had no opportunity to seek legal advice and the court found that she did not comprehend the consequences of signing the contract and ultimately declared the agreement as invalid and unenforceable. The court found it made no sense for her to sign the agreement since she would have already gained the rights under the Family Law Act as the couple was already married when he presented the contract to her.
The court will not uphold marriage contracts where unconscionability and duress are clearly present and especially where there is an inequality of bargaining power between the parties.
How Valerie M. Little Law Corporation Can Help
There are several points along the way in which a family lawyer in Langley or Coquitlam can be of great assistance. For example, prior to getting married, we can draft a prenuptial agreement where you can contract for provisions such as how assets, debts, and estates will be divided and how child support and spousal support will be determined. You cannot contract, however, for provisions such as child custody and access.
We can also can draw your attention to circumstances that may invalidate the contract in the future and make adequate considerations for it now. Any hints of unconscionable circumstances may be negated if the contract is provided to the other party well in advance and that party has had the opportunity to seek legal advice. Also, providing the party with a translated version of the contract for greater clarity can help to later avoid a legal dispute.
If, however, a contract has been signed and you believe it was unconscionable, we can help you to bring the other party to court and prove that it was unfair to help you obtain the settlement you deserve. In Langley or Coquitlam, call family lawyer, Valerie M. Little, for a discussion at any stage of your case. Call 604-526-3333 today.