Breakdown of Marriage
Including a “No-Cheating” Clause in Your Prenuptial Agreement
We’ve previously blogged about the benefits of having a prenuptial agreement (commonly referred to as a pre-nup, and also known as a marriage agreement). Now we turn to a type of clause that may be included in a prenuptial agreement: the lifestyle clause.
What is a Lifestyle Clause?
Most people associate prenuptial agreements with the division of property and other financial assets upon the breakdown of marriage. However, prenups can actually address any number of details outside of strict asset division through the inclusion of “lifestyle clauses”.
Lifestyle clauses address non-financial aspects of a marriage, and have been used to outline such things as division of labour in the home, frequency of visits from in-laws, and similar. Lifestyle clauses are generally seen as guidelines for behaviour. While they are not focused on property or other assets, they can outline financial penalties for a violation of or failure to comply with the terms.
Infidelity Clauses and Prenuptial Agreements
A common lifestyle clause that clients inquire about including in a prenuptial agreement is an infidelity, or “no-cheating” clause. Infidelity clauses have made headlines in recent years with celebrities often including them in high-profile prenups. It was rumoured, for instance, what when Tiger Woods and his (now-ex) wife Elin Nordegren were contemplating getting back together after his cheating scandal, she demanded an infidelity clause be inserted into their prenup with a $350 million financial penalty for Woods if he were to ever cheat again.
While infidelity clauses may seem enticing, it is unlikely that they would be enforced in Canada. Divorce in Canada is “no fault”, which means that the conduct of the spouses is not relevant to the divorce process and has no effect on the amount of spousal support, or in the way property is divided. Canada’s divorce system is not intended to “punish” spouses for misbehaviour. The most recent iteration of the Divorce Act (which governs all divorces in Canada) removed any fault-based grounds for divorce entirely, meaning that “marriage breakdown” is now the sole ground for divorce. Adultery remains a means through which to establish a marriage breakdown, though it may be difficult to do so, and the most common means of doing so is through a one-year separation.
A 2011 decision by the Ontario Superior Court provides some insight into how Canadian courts are likely to respond to an infidelity clause in a pre-nup. In that case, the court rejected the argument that an affair during the negotiations of a marriage agreement (being negotiated after the parties were already married) would void the agreement. The court stated:
In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement…
…it is important to consider the purpose of the contract in question. It is not to enforce personal obligations such as the duty to remain faithful or the commitment to remain in the relationship. While people may feel that these obligations are part of the marriage “contract”, these are not the obligations that domestic contracts are meant to deal with.
In other no-fault jurisdictions a similar approach has been taken. In California for instance, the Appeal Court found that an infidelity clause in a disputed prenup was contrary to the public policy underlying the state’s “no fault” divorce laws, and was therefore unenforceable. The infidelity clause in question would have imposed a penalty above and beyond the property settlement and support obligations that would be imposed in the divorce.
There is often a misconception that misconduct (such as adultery) on the part of one spouse can be used to the advantage of the other in a divorce, this is not accurate. To that end, an infidelity clause in a prenup is unlikely to be enforced in Ontario.
However, including such a clause in a prenup can be a means through which a couple can express their values and expectations about fidelity, and set ground rules about how they would like to be treated during the marriage. Proposing the inclusion of such a clause forces the couple to communicate about things they may otherwise not discuss prior to getting married. This can in an of itself be beneficial, even if the clause is never enforced.
Contact Jason P. Howie, online or at 519.973.1500 if you are considering getting a prenup and would like to know more about your options,