Marriage contracts have become more prominent in recent years, as many individuals wish to protect their money or assets before they enter into marriage with their significant other. Although a marriage contract can deal with more than just monetary arrangements, the most contested area of any marriage contract, unsurprisingly, tends to be about money.
In a recent case before the Ontario Superior Court, Odorico v. Odorico 2021 ONSC 7290 (CanLII) (“Odorico”), debates the validity of a marriage contract. Section 56(4) of the Family Law Act R.S.O. 1990, c F.3 (“FLA”) governs challenges to all domestic contracts and sets out specific circumstances in which one might challenge or set aside their contract. The party challenging the marriage contract, Ms. Odorico, submits that all the factors under section 56(4) of the FLA are present in her claim. Further, Ms. Odorico submits that she was under duress and lacked the free will to create a valid marriage contract.
Duress or undue influence is a particularly difficult claim to make. The basic premise of duress is where there is a significant power imbalance between the parties. A common example in family law could be a partner in an abusive relationship, where the abuser has the power to coerce their partner due to fear of retaliation. The onus lies with the party claiming duress to prove that these circumstances existed, resulting in them involuntarily signing the marriage contract.
In the case of Odorico, Ms. Odorico asserts that Mr. Odorico flatly stated he would not proceed with the marriage ceremony if Ms. Odorico did not sign the marriage contract. Under the circumstances presented in Odorico, the court found that Ms. Odorico would have felt some “discomfort and pressure”; however, the circumstances are not so extreme as to meet the threshold for duress. Accordingly, the court concluded to uphold the marriage contract as a valid document.
The court closes by harshly stating, “Ms. Odarico is now experiencing the remorse of a party who has signed a marriage contract and seeks to leverage her litigation position in the aftermath of a separation”. However, unlike buyer’s remorse, there is no return policy once you sign a marriage contract.