Marriage Contracts

Pre-Nup Templates from the Web: More Trouble Than They are Worth?

writing a cheque

Pre-Nup Templates from the Web: More Trouble Than They are Worth?

The internet is filled with free, do-it-yourself downloadable templates for Family law documents like pre-nuptial contracts.   With a couple of clicks, a few customized tweaks to the saved file, and a signature session before a witness – and you’ve got yourself a watertight pre-nup that you both can live with.   No need to hire separate lawyers to hammer out a deal.

Sounds like a perfect, low-cost solution. Right?

Well, that “watertight” aspect could become a problem later on.   Because it may not end up being the deal you ultimately want – and you may end up stuck with it permanently.

This was the situation in an Ontario case we covered a few months ago. The husband could not convince the court to overturn an unfavourable pre-nup that had been cobbled together using an internet template.  He and his now Ex-wife had signed it in front of a mutual friend during the 30-day run-up to a hastily-planned wedding.  After separation, the husband was never fully satisfied with its terms;  he even spoke to a lawyer but waited another five years before he took steps to do anything about it.  The court found that it was too late for him to do so, since the limitation period for varying or overturning the agreement had lapsed.

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On the flip-side, if you are the spouse who wants to keep the Web-template agreement in place, you may find that it doesn’t “stick” when you want it to.

This was the situation in a case called Oostenbrink v. Oostenbrink.  The long-married couple had started to have marital difficulties, and when they formally split the husband took to the Web to find a separation agreement template.  He amended it to include terms that were very much in his favour:  it gave the wife/stay-at-home mom $1,000 a month for only 12 months.  This was vastly lower and shorter than her legal entitlement would otherwise be, given that she never had outside employment for the entire 23-year marriage and had neither savings nor assets when they separated.  Nonetheless, they both signed the agreement in front of a witness, and without the benefit of legal advice.

The wife later asked the court to set aside the separation agreement set aside. In addressing the wife’s request, the court began by saying:

 The separation agreement is worded very poorly and clearly has not been drafted with the assistance of legal advice.  There are numerous spelling and grammatical errors; many occasions where the word “or” is dangling next to clauses ambiguously; inconsistent paragraph numbering; incomplete or incoherent sentences; sentences where an * indicates a blank to be filled in where the blank is not filled in; and drafting instructions or questions to the parties incorporated into the text.

The court underwent an exhaustive review of the Canadian law relevant to determining the validity of the Web-template agreement, including the basic legal principles on how contracts are formed and interpreted. It scrutinized the wording – including the impact of the terms in which the spouses expressly acknowledged that they understood its nature and effect, mutually waived the right to legal advice, and confirmed that it was final and binding.   It also considered the circumstances in which it was discussed and signed.

The court ultimately found as follows:

Seeking enforcement of the agreement now is seeking to take unfair advantage of the [wife’s] vulnerability at the time that she signed it. …

I find that the entire circumstances of drafting and entering into the separation agreement were fundamentally flawed.  The circumstances were grossly unfair to the [wife], who had no bargaining power or realistic ability to be advised of her rights prior to signing it.  Her desperate need to rely on the [husband’s] income, even on an interim basis, made her so vulnerable as to make the agreement’s terms unenforceable. 

As these stories illustrate:  When it comes to free stuff from the internet, it really can be a case of “you get what you pay for”.

For the full text of the decisions, see:

F.K. v. E.A., 2019 ONSC 3707 (CanLII) 

Oostenbrink v. Oostenbrink, 2013 BCSC 514 (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 RussellAlexander.com