Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Marriage Contracts: Have You Signed Under Duress or Undue Influence?

Marriage Contracts: Have You Signed Under Duress or Undue Influence?

By:

Posted September 26, 2019

Many couples who are getting married talk about having a marriage contract. These contracts allow a couple to outline what happens to each of their property should they ever separate, even when that separation is due to death. A marriage contract also lets couples address the issue of spousal support, a claim that could be made if there is a separation.

It is not uncommon to see couples who want to sign their marriage contract in the weeks, even days, leading up to their wedding. A lot of time is spent on planning a wedding, which can lead to the marriage contract taking a longer time to negotiate, or taking a back seat completely, making the drafting process start late. It is also not uncommon to hear that one party insists on the contract being signed as a part of the marriage process.

However, the closer a marriage contract is signed to a wedding date, or the more a party feels they have to sign the contract prior to the wedding, the higher the risk is that the contract could be set aside in the future.

In Ontario, the Family Law Act provides for scenarios where a Court can find sections of a marriage contract to be invalid and then set aside parts of or all of the contract. Through cases, Courts have outlined that these scenarios include those where there has been clear duress and/or undue influence.

Cases have defined ‘duress’ as “a coercion of the will” or something which places pressure on a party, putting them in a position where there is “no realistic alternative but to submit to the pressure” (see Ludmer v Ludmer, 2013 ONSC 784). In cases where this is alleged, it is usually to say that the pressure was put on one party to sign an unfair contract or a contract that is one-sided, protecting only one spouse.

‘Undue influence’ is shown by demonstrating an inequity in bargaining power leading up to and/or at the time of signing the contract. A party has to show that the other “dominated” their will through manipulation, coercion or abuse of power (see M.D. v A.C., 2017, ONSC 6260).

Timing, like feeling the pressure to sign the contract before the wedding, can further heighten the sense of duress and/or undue influence.

Whether or not a marriage contract is found to be partially or fully invalid and set aside depends on the unique circumstances of the case. Each situation is very fact-specific; however, it is important to have a discussion about duress and undue influence with your partner, and a lawyer, prior to signing. If the wedding day is fast approaching, the option of signing the contract after the wedding may be the safer route – the pros and cons of which you should discuss with a lawyer.

Protecting oneself through a marriage contract is a sound approach; however, it is important that the manner in which the contract is finalized and signed stands the test of time.

This blog post was written by Olivia Koneval, a member of the Family Law team.  She can be reached at 613-369-0367 or at olivia.koneval@mannlawyers.com.

More Resources

Blog |
Wills, Trusts and Estates

By: 

Posted May 17, 2022

I am often asked the question of whether the will-maker should disclose the contents of their will to their beneficiaries.  In some situations, the will-maker[...]
Blog |
Real Estate

By: 

Posted May 10, 2022

The More Homes for Everyone Act, 2022 (“Bill 109”) received Royal Assent on April 14th, 2022. Some sections of Bill 109 will come “into force”[...]
Blog |
Real Estate, Wills, Trusts and Estates

By: 

Posted May 3, 2022

As we all know, house prices are skyrocketing in the region, and this in turn has resulted in parents providing assistance to children who are[...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted April 26, 2022

The mediator’s reaction to my client’s disclosure that she had secretly recorded her conversation with her boss was one of dismay.   He made it clear[...]
Blog |
Family Law

By: 

Posted April 25, 2022

Family law litigation can be a particularly complicated and expensive legal endeavor exacerbated by the emotional difficulties of a fractured relationship. These matters become even[...]
Blog |
Real Estate

By: 

Posted April 14, 2022

What is the Federal Budget? Every year the Department of Finance is tasked with balancing the revenue and expenses of the Government of Canada. As[...]

Subscribe to Our Newsletter

Name*
Consent*
This field is for validation purposes and should be left unchanged.