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Legal News Canada - Supreme
Court of Canada affirms prenuptials March
27, 2004 Prenuptials:
A deal is a deal
Supreme
Court of Canada affirms marriage agreements | As
same-sex couples acquire the full rights of marriage, we also acquire the protections
and obligations. Yesterday's ruling from the Supreme Court of Canada on the validity
of a prenuptial agreement underscored the age-old concept: a deal is a deal. |
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In Hartshorne
v. Hartshorne, a 6-3 majority sad that "courts should respect
private arrangements that spouses make for the division of their property
on the breakdown of their relationship ... Individuals may choose to structure
their affairs in a number of different ways and courts should be reluctant
to second-guess the arrangement on which they reasonably expected to rely."
Qualities
of a binding prenuptial agreement "Marriage
agreements define the parties' expectations from the outset," Canada's Supreme
Court said, "usually before any rights are vested and before any entitlement
arises. Often, perhaps most often, a desire to protect pre-acquired assets or
an anticipated inheritance for children of a previous marriage will be the impetus
for such an agreement." Prenuptials
are enforceable when: - Substantively
fair: the circumstances of the parties at the time of separation are within the
reasonable contemplation of the parties at the time the agreement was formed.
- The
parties have independent legal advice.
- Both
parties remain faithful to the intent and specifics of the agreement.
- Provisions
are made for spousal support (self-sufficiency and needs are met).
- Assets
are kept separate.
While
the courts reaffirmed fair treatment for spouses who would suffer from financial
hardship it said that didn't mean equal access to all assets, not when you've
signed them away. "A
fair distribution of assets must of course take into account sacrifices made and
their impact, the situation of the parties at the time of distribution, their
age, education and true capacity to reintegrate into the work force and achieve
economic independence in particular. But this must be done in light of the personal
choices made and of the overall situation considering all property rights under
the marriage agreement and other entitlements." The
court reaffirmed the principles of spousal support that emerged in the landmark
lesbian support case M v. H. Access to spousal support must be considered,
the court found, when determining the fairness of a prenuptial agreement. "It
is highly significant that the Agreement explicitly preserves a right to spousal
support." | Property
Rights In
a 2002 case (Attorney
General v. Walsh) the Supreme Court of Canada
said that unmarried couples didn't have a right to 50/50 split of property:
"The
decision to marry or not is intensely personal and engages a complex interplay
of social, political, religious and financial considerations by the individual,"
said the court. "People who marry can be said to freely accept mutual rights and
obligations. A decision not to marry should be respected because it also stems
from a conscious choice of the parties. If they have chosen not to marry, is it
the state's task to impose a marriage-like regime on them retroactively?" |
A
prenuptial is fair as long as it protects self-sufficiency and needs are met. "Once
an agreement has been reached, albeit a marriage agreement, the parties thereto
are expected to fulfill the obligations that they have undertaken. A party cannot
simply later state that he or she did not intend to live up to his or her end
of the bargain."
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