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Legal News Canada - Supreme Court of Canada affirms prenuptials

March 27, 2004

Prenuptials: A deal is a deal
Supreme Court of Canada affirms marriage agreements

As same-sex couples acquire the full rights of marriage, we also acquire the protections and obligations. Yesterday's ruling from the Supreme Court of Canada on the validity of a prenuptial agreement underscored the age-old concept: a deal is a deal.

In Hartshorne v. Hartshorne, a 6-3 majority sad that "courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship ... Individuals may choose to structure their affairs in a number of different ways and courts should be reluctant to second-guess the arrangement on which they reasonably expected to rely."

Qualities of a binding prenuptial agreement

"Marriage agreements define the parties' expectations from the outset," Canada's Supreme Court said, "usually before any rights are vested and before any entitlement arises. Often, perhaps most often, a desire to protect pre-acquired assets or an anticipated inheritance for children of a previous marriage will be the impetus for such an agreement."

Prenuptials are enforceable when:

  • Substantively fair: the circumstances of the parties at the time of separation are within the reasonable contemplation of the parties at the time the agreement was formed.
  • The parties have independent legal advice.
  • Both parties remain faithful to the intent and specifics of the agreement.
  • Provisions are made for spousal support (self-sufficiency and needs are met).
  • Assets are kept separate.

While the courts reaffirmed fair treatment for spouses who would suffer from financial hardship it said that didn't mean equal access to all assets, not when you've signed them away.

"A fair distribution of assets must of course take into account sacrifices made and their impact, the situation of the parties at the time of distribution, their age, education and true capacity to reintegrate into the work force and achieve economic independence in particular. But this must be done in light of the personal choices made and of the overall situation considering all property rights under the marriage agreement and other entitlements."

The court reaffirmed the principles of spousal support that emerged in the landmark lesbian support case M v. H. Access to spousal support must be considered, the court found, when determining the fairness of a prenuptial agreement.

"It is highly significant that the Agreement explicitly preserves a right to spousal support."

Property Rights

In a 2002 case (Attorney General v. Walsh) the Supreme Court of Canada said that unmarried couples didn't have a right to 50/50 split of property:

"The decision to marry or not is intensely personal and engages a complex interplay of social, political, religious and financial considerations by the individual," said the court. "People who marry can be said to freely accept mutual rights and obligations. A decision not to marry should be respected because it also stems from a conscious choice of the parties. If they have chosen not to marry, is it the state's task to impose a marriage-like regime on them retroactively?"

A prenuptial is fair as long as it protects self-sufficiency and needs are met.

"Once an agreement has been reached, albeit a marriage agreement, the parties thereto are expected to fulfill the obligations that they have undertaken. A party cannot simply later state that he or she did not intend to live up to his or her end of the bargain."


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