After a “Promise to Marry”, What About a “Promise Not to Divorce”?
Actors and longtime spouses Jada Pinkett-Smith and Will Smith are in the news again for their unconventional relationship.
Jada has shared some new details while promoting her new book, Worthy, which will be released shortly. According to an article on People.com and an interview with Today.com, Jada has revealed that she and Will did not sign a pre-nup before their 1997 wedding.
The reason? Because she had essentially promised never to divorce him.
Her stance at the time was that “No matter what, we’re going to figure it out, and that’s why we don’t need a prenup, because I’m making a promise that divorce won’t be necessary, that we will figure this out,” she said.
Yet that hasn’t stopped the still-married Hollywood couple from living separate lives for the past seven years. Jada explained that when she and Will attended the Oscars together in 2022 they “had been living separate lives and were there as family, not as husband and wife”.
Now, that’s not necessarily show-stopping news: Many Canadian couples often live separate and apart for long periods of time, and never bother to file for divorce.
(And by the way, there no such thing as a “promise” or “contract not to divorce” under Canadian Family Law, at least not one that’s enforceable. Our legal system ascribes no fault to either divorcing party; to be eligible to divorce, one spouse must simply prove that certain statutorily-mandated criteria have been met.)
But while a long and relatively amicable separation might be seen as emotionally mature or even “healthy”, under Ontario law it comes with many potential pitfalls. Specifically, if the separation lasts many years (or decades), the untangling of the spouses’ affairs at that point can become unnecessarily complicated.
Certain legal claims by one spouse against the other may be precluded by statutory limitation periods, which impose a deadline for bringing them. The equalization of net family property, for example, must be brought within 6 years of the spouses’ separation date.
Another problem with long separations is that one of the spouses might die. This triggers an even shorter limitation period for equalization net family property (only 6 months), and is further complicated by the involvement of the Estate Trustee.
Finally, there may also be a huge change in the value of the spouses’ assets over time. A prompt post-separation equalization will ensure that each spouse walks away with their fair share, and they can invest or spend it as they see fit. The unpleasant flip-side could see one spouse secretly depleting their joint assets during the long separation period, to the extreme detriment of the other unknowing spouse who could be left financially bereft.
So – at least for those of us who aren’t Hollywood stars – it’s important to cut ties cleanly, and take appropriate legal steps promptly. Because if there’s one promise that’s sure to come true: The alternative is needlessly messier.