You have waived spousal support in a marriage contract before you marry your husband (or wife), with the hope that your marriage is for life. However, years down the road, your marriage starts crumbling and you are not in a financial position to be self-sufficient. Good news, you are not without recourse.
Section 33(4) of the Family Law Act has stipulated that
“The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
(c) if there is default in the payment of support under the contract at the time the application is made. given the applicant’s contribution and the economic consequences of the relationship to both spouses, his waiver of spousal support does result in unconscionable circumstances.”
Caselaw has described the “unconscionable” as “something which is shocking, oppressive, not in keeping with a caring society”. In one Ontario case, based on the principle of unconscionability, the husband who is a construction laborer has been awarded spousal support in the sum of $ 700 per month despite the fact that he waived spousal support in the marriage contract. In this case, the court upheld the remaining provisions contained in the marriage contract.
When the court decides whether the waiver of the spousal support will result in any unconscionable circumstance, the court generally considers the circumstances surrounding the execution of the agreement, the results of the support provisions of the agreement, including any hardship visited upon a party and the parties’ relative circumstances at the time of the hearing including their health, employability and ability to maintain their life style.
In addition, if the marriage contract violates the fundamental contractual principles, it can also be rendered void. Examples include duress, fraud or illegality, mistake or one party lacks the capacity to understand the terms of the contract.
If you find yourself stuck with a marriage contract where you have waived the spousal support, please do not hesitate to contact our team of Family Lawyers to review your options.
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