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Was Your Marriage Contract Signed “Under Duress”?

duress

Was Your Marriage Contract Signed “Under Duress”?

About-to-be-married couples are wise to protect themselves by signing a marriage contract beforehand. But the key to having those agreements hold up is that they must be freely and voluntarily executed.

We’ve all heard stories of pre-nuptial contracts being signed by the happy couple on their wedding day, virtually on the altar. Or else cases where the couple are negotiating the agreement for months, against the backdrop of a year of planning and thousands of dollars in deposits laid down, and it’s finally signed at a time when pre-wedding stress is at an all-time high.

Are marriage contracts signed under these conditions worth the (embossed) paper they are written on?
In Ontario, the Family Law Act and the related jurisprudence says: “it depends”. First of all, the legislation lays out certain types of clauses that are never valid (such as a clause attempting to prohibit a spouse from remarrying after separation), and sets out various scenarios that can prompt the court set aside all or part of a marriage contract. Among those scenarios – by general reference to basic contract principles established in the cases – is the concept that a contract that was signed under duress will not be enforced in law.

“Duress” is colloquially regarded to mean those situations where one intended spouse has put some sort of pressure on the other spouse to sign what is usually alleged after-the-fact to be an unfavourable, unfair, or one-sided agreement.

Legally, the meaning is a bit more precise, even though the Family Law Act itself does not contain a definition for this term. However, in a case called Ludmer v. Ludmer, the court examined the nature of duress, stating:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

So what forms does “duress” take, in the real world? In the case we commented on last week, Shair v. Shair, the court considered whether the wife had been subject to duress in signing a marriage contract that she later complained had stripped her of certain support rights that she would otherwise have under the Family Law Act and Divorce Act.

However, the court rejected her claim that she signed the agreement out of duress, finding instead that she:

“…chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither.”

For the full text of the decisions, see

Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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 RussellAlexander.com