Marriage contracts and prenuptial agreements may have full release and waiver clauses embedded but they may not be enforceable. Section 33(4) of the Family Law Act in Ontario provides that a court may set aside a provision for support or a waiver of the right to support in a domestic contract although the contract contains an express provision excluding its application, if the provision for support or the waiver to support results in “unconscionable” circumstances at the time of separation.
The article suggests including language indicating that both parties agree that they have discussed (with their own lawyer) the notions of fairness and the circumstances under which they have entered into the agreement; that they both agree that the terms of the agreement are fair in the present and will be considered to be fair in the future regardless of any change in their circumstances; that both parties intend to be bound by the agreement; and that any challenges to the enforceability of the agreement may be resolved by summary judgement without a case conference.
Careful drafting of the agreement may increase the chances that a full release/waiver clause will be enforceable.
- Ensure that the marriage contract contains acknowledgements by both parties that the agreement is fair and reasonable both now and for the future, and that they both fully intend to be bound by a release and/or waiver of support obligations or equalization rights.
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