Affairs, Adultery & Spying

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

Written by Russell Alexander / (905) 655-6335

In this Ontario case dealing with the validity of a marriage contract between a husband and wife, the husband ask the court to strike it down for an unusual reason: At the time his wife signed it, she was cheating on him with another man and was possibly plotting to leave the marriage altogether.

In D’Andrade v. Schrage, a wealthy, twice-divorced 61-year old man married a 34-year old woman. He prepared a marriage contract to sign, in which he promised (among other things) that in the event they separated he would pay her a lump sum of $300,000, and buy her a home worth at least $250,000.

The wife did sign the contract; however unbeknownst to the husband, she was having an affair at the time and had already contacted lawyers to discuss her options and rights in the event that she decided to go through with a separation.

When the husband found out about the affair (from the wife’s sister, incidentally), he immediately left and began divorce proceedings. When the matter eventually came before the court, the man claimed that the agreement obliging him to pay the wife various amounts was invalidated by the wife’s “lack of good faith” in signing it, given that she was thinking of leaving him at the time.

The court considered the effect of this post-facto development on the legal validity of the marriage contract. Here, it was clear that the wife was considering separation, but there was no evidence that she had actually decided to do so. Still, the court struggled with the notion that spouses have a positive duty to disclose private thoughts of this nature:

To require spouses to disclose their thoughts about the likelihood of separation or their involvements in extra-marital sexual activity before signing a marriage contract could have serious implications for the survival of marital relationships. If the obligation to disclose is limited to thoughts of separation, the question becomes how serious those thoughts of separation were. Does there have to be evidence that the decision to separate has been actually made? … If this is not the threshold then what is? Is it any thought of separation or only serious thoughts of separation? If it is the latter, how “serious” is serious enough?

The court also reflected on the broader ramifications of acceding to the husband’s argument that in this context married spouses must disclose affairs or potential plans to separate:

In this case, the public policy implications of requiring married couples to disclose their thoughts of separation or their involvement in extra-marital relationships before executing a marriage contract are negative rather than positive. In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement. In essence, [the husband] is seeking to reintroduce conduct into the consideration of whether a marriage contract should be set aside. This is a road the law has been down before and, based on that experience, it is a road to be avoided unless justice demands it.

The court also made an important point: marriage contracts are not designed to enforce “personal” obligations (such as the duty to remain faithful or the commitment to stay in the relationship). Rather, they are aimed settling the financial obligations between couples who decide to separate (such as support entitlement and division of assets). By extension, any legal duty to disclose information relates only to matters relevant to the financial purposes of the contract, not the more personal ones.

In the end, the court rejected the husband’s argument as to the relevance of the wife’s affair and her contemplating separation and upheld the agreement, ordering the husband to pay the wife various amounts he had promised under it.

For the full text of the decision, see:

D’Andrade v. Schrage, 2011 ONSC 1174 (CanLII),

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.