Can A Cheating Clause Be Included in Prenups?

Prenuptial agreements, often colloquially referred to as "pre-nups," are contracts entered into by individuals who are intending to marry. They commonly deal with financial matters, such as property division if a marriage comes to an end. A prenup answers the ‘’who gets what’’ question at the end of a marriage.  The aim of these agreements is to exclude the application of the Family Law Act (FLA) property regime at the termination of a marriage.  It must be noted, however, that spouses are not restricted to only deal with property division or financially related issues in their prenups. Issues dealing with, for example, pet custody, dispute resolution, and inheritance may also be incorporated into a prenup.

Recently, there has been debate regarding the inclusion of so-called "infidelity clauses" in prenuptial agreements. Further, it is uncertain whether such clauses are enforceable.

What is an infidelity clause?

An infidelity clause outlines the consequences that attach if one spouse were to commit adultery (if X cheats, then Y consequence will happen). It essentially establishes penalties if one partner is unfaithful during a marriage. The aim of an infidelity clause is to act as a deterrent to infidelity.  

Can an infidelity clause be included in a prenup?

The question of whether an infidelity clause can be included in a prenup may be answered by noting, firstly, that the FLA does not explicitly prohibit their inclusion, and secondly, by reference to section 6 of the FLA. Section 6 of the FLA is found under the heading "Resolution out of court preferred’’, it reads: -

            ‘’6 (1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

               (2) A single agreement may be made respecting one or more matters.

              (3) Subject to this Act, an agreement respecting a family law dispute is binding on the  parties.

   (4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(c) the agreement is filed with a court’’.

In terms of section 6 of the FLA above, spouses/ parties are encouraged to resolve disputes through agreements. Parties are permitted to make agreements in respect of a matter that may be the subject of a family law dispute in the future. i.e., infidelity.  There is no limit on the subject matter of what parties may make an agreement on. The statement ‘’a matter that may be the subject of a family law dispute in the future’’ is broad enough to include anything that parties may disagree on.  For example, If the parties can potentially have a dispute about X, they are permitted to make prior agreement that addresses X. On this basis, an infidelity clause may be included in a prenup because infidelity is a matter that may be the subject of a family law dispute in the future.  

Is an infidelity clause enforceable?

As with all thing’s contracts, the challenge is not whether parties to the contract can agree on terms, of more importance is whether the courts will enforce the terms the parties have agreed on. Determining whether the terms of a contract are enforceable is where the crux of the matter is.

Courts do not enforce every contract. Several factors can place limitations on a courts willingness to enforce the terms of a contract. For example, a court may decide that a term in a contract is either illegal and or against public policy. The party seeking to avoid enforcement of the clause must prove the existence of an overriding public policy that outweighs the very strong public interest in the enforcement of contracts. See Douez v. Facebook, Inc. [2017] 1 SCR 751.  If the party succeeds, the court will not enforce the agreement or the term in question. 

A party who intends to enforce an infidelity clause may face several challenges in Canada.

Lack of Precedent

Canada is a common law jurisdiction (expert for Quebec), and as such, judges are bound to follow the decisions of previous courts (precedents). Presently, there is no case on point in British Columbia or anywhere else in Canada that addresses the enforceability of infidelity clauses.

A case that comes close is D’Andrade v. Schrage, 2011 ONSC 117.
The facts of that case are as follows. The respondent, Mr. Schrage, and the applicant, Ms. D’Andrade, began cohabiting in 1998 and married in 2001.
Throughout the course of their relationship, the parties concluded several domestic contracts, the last of which was concluded in December 2007.

Under December 2007 agreement, Mr. Schrage promised that he would pay Ms. D’Andrade a lump sum of $300 000.00 and buy her a house worth at least $250 000.00 if they separated or divorced. In turn Ms. D’Andrade released her rights to spousal support and to an equalization of net family property if they separated.

Shortly after both parties signed the agreement, Mr. Schrage discovered that Ms. D’Andrade was having an affair.  Mr. Schrage commenced divorce proceedings against Ms. D’Andrade. Ms. D’Andrade thereafter sought to enforce the terms of the 2007 agreement.  Mr. Schrage argued that the agreement was unenforceable because Ms. D’Andrade was having an affair at the time she signed the agreement. Mr. Schrage argued that marriage contracts require uberrima fides (uttermost good faith), and that Ms D’Andrade breached this duty when she signed the December 2007 agreement. Mr. Schrage argued that the December 2007 agreement could not be enforced in circumstances were Ms. D’Andrade was having an affair at the time of signing.  

The issue before the court was whether a marriage contract should be set aside because, unbeknownst to the husband, on the day that the wife signed the contract she was having an affair and, more importantly, was contemplating separation.

The court concluded that the law does not place an obligation on a spouse to disclose an extra-marital affair during negotiations of a marriage contract. When negotiating such a contract couples have an absolute obligation to disclose anything that would be relevant to the purpose of the contract. Since the purpose of the contract is financial, that obligation demands the utmost good faith and fair dealing in disclosing their financial positions. The obligation does not extend to disclosing the existence of an extra-marital affair or the intention to separate.

The court concluded as follows: 

‘’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’’.

It is vital to note that D’Andrade is a decision of the Ontario Superior Court of Justice and therefore not binding in British Columbia. And, although the case does not deal directly with the enforceability of infidelity clauses, it provides insights into the attitude of courts concerning infidelity and its effect on marriage contracts.  It is likely that courts in Canada might not enforce infidelity clauses because courts are generally reluctant to enforce ‘’duties to remain faithful’’.    

Abolishment of Fault-Based Divorce

Canada has done away with the fault-based divorce. In the current Divorce Act, marriage breakdown is the only ground for divorce pursuant to section 8. And since marriage breakdown is a no-fault ground to divorce, it is unlikely that a court will enforce a clause that places a spouse at fault. In D’Andrade, the court stated ‘’the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement’’.

Conclusion

Parties intending to get married may conclude prenup agreements. These types of agreements usually deal with financial matters and the division of property if the marriage comes to an end. However, prenups can deal with non-financial aspects of a marriage.

Questions have been raised on whether cheating clauses may be included in prenups. And, while there is nothing at law preventing inclusion of such clauses, it is uncertain whether  courts in Canada will enforce a cheating clause.

 If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.