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BC Adultery Marital Affairs Spousal Misconduct and BC Marriage and Cohabitation Agreements

As BC family agreement lawyers we want people to know that while there is a prevailing assumption that adultery on the part of one party would be an advantageous position for the other party in a domestic dispute – this is inaccurate!

British Columbia as part of Canada has a no-fault divorce regime. We are often asked by our clients whether the fact they or their spouse had an affair affects their claim for property division, spousal support and child custody. Our firm went all the way to the Supreme Court of Canada on LESKUN to help set the law on how spousal misconduct may be considered in a spousal support case. This area can impact your case on financial issues under rare circumstances and can be part of a custody issue so consult with us across BC at any of our 4 offices by calling us toll free at 1 877 602 9900.

We are also asked by our family law clients whether an affair or some other spousal misconduct can avoid or make invalid a cohabitation or marriage agreement on the basis that this behavior may represent a rejection of the till death do us part concept of the wedding vow.

In D’Andrade v. Schrage, 2011 ONSC 1174 (CanLII) the court rejected the concept that an affair would void a marriage agreement even one happening at the time the agreement was being negotiated and signed.

At Paragraph 80 the court held:

 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. In essence, Mr. Schrage is seeking to reintroduce conduct into the consideration of whether a marriage contract should be set aside. This is a road the law has been down before and, based on that experience, it is a road to be avoided unless justice demands it.

In assessing whether justice demands that the disclosure requirements owed by one party to another when negotiating a marriage contract include the matters alleged by Mr. Schrage, 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 the case of D’Andrade v. Schrage,  Ms. D’Andrade was 34-years-old and a bank employee and  Mr. Schrage, a 61-year-old businessman and millionaire when they started to cohabitate  in  1998. They were married in  2001 and separated  in 2008.  Throughout this time numerous domestic contracts were entered into to deal with, amongst other things, the distribution of assets and spousal support in the event that that the relationship came to an end.  The age difference was of particular concern to Mr. Schrage and partly on the advice of his lawyer he entered into numerous domestic contracts with  D’Andrade. They owned numerous properties together inside and outside of Canada and shortly after they began dating D’Andrade ceased working – it was clear that Mr. Schrage was the main income earner.

The main issue in this case was not lack of financial disclosure, as all parties were well aware of each other’s assets.  D’Andrade had been in a relationship with another man when she started dating Schrage, even when Schrage was fighting cancer and going through radiation therapy. She continued the other liaison during the course of her relationship with Schrage and when he discovered this in 2008 he advised her that their marriage was over.  D’Andrade admitted that  in  December 2007 when she attended her lawyer’s office to sign the domestic contract at issue,  she  was clearly contemplating separating from Schrage and was still having a relationship outside of the marriage.  Schrage argued that parties to a contract have an obligation of good faith towards each other and where a domestic contract is concerned the “utmost good faith.”.  As such, due to her infidelity throughout the marriage and contemplation of separation at the time of the signing of the December 2007 domestic contract,  the contract was entered into without good faith and therefore the contract should be found invalid.   Mr. Schrage further argued  that D’Andrade  had a duty to tell him about the affair. If the contract was upheld, D’Andrade would be entitled to the proceeds of one of the homes in the amount of $250,000.

While there is a prevailing assumption that adultery on the part of one party would be an advantageous position for the other party in a domestic dispute – this is inaccurate and the court in this case confirmed this. The court applied the test set out in s. 56(4) FLA and determined that the criteria had been met regarding financial disclosure and independent legal advice and upheld the December 2007 agreement. The court determined that the wife did not have a duty to advise the husband of her infidelity – this did not invalidate the agreement.  The court further stated that “a marriage contract… 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.

Section 56(2) is an exception to the above, which reads as follows:

Provisions that may be set aside or disregarded
Clauses requiring chastity

(2)  A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

In BC the repartnering of a spouse is a factor a court can look at on financial issues particularly on support issues but this new partner will not always result in a diminution or cancellation of support.  Call us now if you have concerns in this area.



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