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Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

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Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

The couple married in 1999 after what was largely a long-distance relationship. Apparently in response to a recent affair by the husband, the wife prepared a marriage contract, which she presented to him three weeks before the wedding. She told him she would not marry him unless he signed. The husband, who did not seek legal advice, signed the contact on their wedding day.

Nine years later, when the couple separated, the husband went to court to have the marriage contract set aside.

Among other things, he claimed that: 1) he did not understand what he was signing, 2) he was under duress; and 3) the wife had failed to disclose $20,000 in savings, and that had he known about this significant asset, he would not have signed at all.

The husband’s motion to have the marriage contract set aside was dismissed. The court made the following specific findings:

• The wife’s non-disclosure of $20,000 in savings was not of great significance in the grand scheme, and did not believe that the husband would have governed himself differently, had he known about it beforehand.

• While the husband’s first language may not have been English (he was Turkish), he was a highly intelligent and educated man who was on his way to earning his Ph. D. in English. He had worked in journalism in English before getting married, and had studied and taught at Ivy league schools in the U.S. All of this belied his claim that his language skills were inadequate and that he did not understand the agreement or what he was signing.

• Likewise, in light of his education and work/life experiences, his claim that he was under duress did not ring true. As the court put it: “He was no shrinking violet.”

About the husband’s additional claims that the contract was unconscionable and that he had not obtained independent legal advice prior to signing, the court said:

The fact that he chose not to seek legal advice was a decision that was his to make. While he may regret that choice now given how things have turned out, regret about a choice made is not the test for setting aside a contract. … Any party to any agreement runs the risk that they are making a poor bargain. As things turn out, any agreement can be revealed as foolhardy and regrettable. … This contract was a meeting of minds. It may not have turned out advantageously for both, but such a result does not equate to a finding of unconscionability. … In the final analysis I find that the results are within the range of what the parties freely intended. It must never be forgotten that the ability to contract is a pillar of a free society.

As a result, the marriage contract was held to be valid and enforceable.

For the full text of the decision, see:

Tunc v. Portugese, 2014 ONSC 3909 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com