Have you waived spousal support in a marriage contract? If you or someone you know has prior to their marriage released their rights of spousal support relying on the marriage to be eternal and end up parting with your spouse and depleted finances. The bright side is that you are not without recourse.
If the court contemplates that the waiver of the spousal support will bring about any unconscionable circumstance, the court generally considers the circumstances surrounding the execution of the agreement, the consequences of the support provisions of the agreement, including any difficulty visited upon a party and the parties’ relative circumstances at the time of the hearing including their well-being, employability, and ability to keep up their lifestyle.
Section 33(4) of the Family Law Act has stipulated that the court is authorized to set aside a provision for support or a waiver of the right to support in a domestic contract. The court may determine and order support in an application under subsection (1), unless the contract contains an express provision excluding the application of this section.
The Essence Of Unconscionable Circumstances
The factors influencing the courts when applying Section 33 (4) is either a consideration of the provision where the right to support is waived and results in unconscionable circumstances or the provision for support or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money.
Common law defines “unconscionable” as “something unjust, and that which is deemed to be unfair by the society”. To understand unconscionability, let’s discuss Ontario court’s decision in Scheel v. Henkelman, (2001) 142 O.A.C. 374 (CA) where the wife was granted spousal support of $35,000 every month notwithstanding the fact she waived spousal support in the cohabitation contract. It is notable that the court maintained the spirit of unconscionable circumstances flowing from Section 33(4) of the Family Law Act.
In addition, if the marriage contract violates the fundamental contractual standards, it can also be rendered void and unenforceable. Examples include coercion, fraud or illegality, mistake or one party lacks the capacity to understand the terms of the contract.
Our Expert Lawyers Can Guide You
If you find yourself stuck with a marriage contract where you have waived the spousal support, please do not hesitate to contact our skilled team of Family Lawyers at Ayaz Mehdi Professional Corporation to review your options.
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