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Some may think entering into marriage contracts is a recent trend. However archeological evidence shows the contrary: marriage contracts have been around for quite some time – since ancient Egyptian times. These ancient Egyptian marriage contracts were quite popular amongst women at the time. In fact, some men were given “8-foot long” marriage contracts! Because men often had multiple wives, marriage contracts were seen as a way for women to ensure that they were financially secure upon a breakdown of the marriage. Often these marriage contracts were highly advantageous for women with little regard for the husband’s rights.
However, modern law will often not enforce contracts which would allow one party to have such a large advantage. When a court is assessing the validity of a marriage contract, one of the factors to be considered is whether the marriage contract was entered into under undue pressure. The court will also consider whether the marriage contract is unfairly advantageous to one party, and unconscionably detrimental to the other party. Because of this concern, it is common practice for each party to obtain independent legal advice prior to signing the marriage contract. Each party will have their own lawyer review the marriage contract and advise them on whether the marriage contract is fair or whether their rights/interests should be better protected.
Take away:
- When giving independent legal advice on a marriage contract, counsel should do more than just thoroughly review the terms of the contract. It is also essential to obtain adequate information before advising the client. This information will include: age of the parties; family history (previous marriages, children, dependants) medical needs, financial status, career goals, business interests,debts, cultural expectations of the marriage etc.
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Kathy Tomaszewski: Kathy earned an LL.B from the University of Western Ontario and was awarded a Gold Medal for the highest average in her graduating class. She articled as a law clerk to Hon. Bora Laskin, Chief Justice of Canada, Supreme Court of Canada. As a law student, Kathy also worked for one of the ‘Seven Sisters’, drafting proposed amendments to the Income Tax Act, and working in the litigation department. After receiving an LL.M. from Harvard University, Kathy taught law full-time for 10 years at the University of Western Ontario in the areas of constitutional, corporate and commercial law. In addition to teaching and publishing in these fields, Kathy acted as a consultant for the Ontario Securities Commission (researching proposed legislative changes), and the Ontario Human Rights Commission (sitting on Boards of Inquiry). Kathy also taught a course in Securities Regulation as an Adjunct Professor at the Law Faculty of the University of Toronto.While caring for her growing family, Kathy launched her own business in private educational therapy. Kathy has worked with many individuals challenged by learning difficulties and developmental delays, helping them to become independent learners. She has designed and taught courses in all subjects K-grade 8, with a specialty in logic, critical thinking, and writing skills. Kathy continues to act as a research consultant for small law firms on issues ranging from family and criminal law, to human rights and constitutional law. Kathy started with Clausehound in November 2014, and is the Company’s Knowledge & Research lead.