Prenup Example

Marriage Contract | Prenuptial Agreement forms: how can they be challenged?

Please note that the information provided herein is not legal advice and is provided for educational and informational purposes only. If you need legal advice with respect to achieving a prenuptial agreement, you should seek professional help (for example, make a post on Dynamic Advocates). We are Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help. We will soon offer our prenuptial agreements legal forms Guides + video section. You can contact me directly if you need counsel.

This is the second in a series of posts in the article that I write about premarital or prenuptial agreements for Ontario. In the first article, I discussed what they are, when they are used, and what is necessary for them to be valid and enforceable. In this article I will discuss how they can be challenged.

How a marriage contract be challenged?
A marriage contract can be challenged in various ways on the substance (ie terms and conditions) of the agreement or the process in which it was concluded. For more general information on this subject, please refer to the Guide DL entitled "Is My Legal form valid and enforceable? That is included with every package you buy legal form. The Family Law Act of Ontario also describes the different ways in which these agreements can be challenged by a party.

To begin with, a party may apply to court to have a marriage contract - in whole or in part - to cancel, on the basis under section 56 (4):

(A) a party has not disclosed to other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(B) a party does not understand the nature or consequences of the domestic contract or

(C) otherwise in accordance with the law of contract.

In Loy v. Loy [2008] WDFL 351, Ontario Superior Court of Justice has reviewed the case law on Article 56 (4). In this particular case, Ms. Loy had challenged the validity of a marriage contract (which, like a prenuptial agreement, is called a domestic contract) that it had concluded. The Court found no reason to cancel this contract home. Here is the reasoning of the Court under Article 56 (4):

Section 56 (4)

174 This section of the Act on family law gives a court the power to strike down or complete agreement, if it falls into one of the categories listed. Ms. Loy argued that the domestic contract in this case must be canceled due to lack of disclosure and a lack of independent legal advice. She also contends that Mr. Loy pressure to sign the contract and it did so under duress. The constraint is a factor the Court may consider under section 56 (4) (c) otherwise in accordance with the law of contract.

175 Hartshorne (2004), 47 RFL (5th) 5 (NCC), the Supreme Court of Canada reiterated that the process for determining the weight to be given an agreement is two-step analysis enunciated in Miglin, 2003 SCC 24, and furthermore, there is no "hard and fast" rule regarding the level of respect given to the marriage contract in relation to separation agreements ..