Marriage Contracts and Dependant’s Support

November 4, 2014 Stuart Clark Support After Death 0 Comments

Divorce is an expensive fact of life for many in today’s world. It is for this reason that many people, especially in second marriages, opt to enter into a marriage contract at the time of their marriage, which clearly sets out what is to happen between the two spouses as it relates to their property. While the main focus of the marriage contract is often what will happen in the event of a divorce, attention is also often given to what should happen in the event of the death of one of the spouses, with language often being included providing that the surviving spouse has given up any right against the deceased spouse’s estate.

While on its face this broad language may appear to bar the surviving spouse from commencing any proceeding against the deceased’s spouses estate after their death, what many may not be aware of is that the Succession Law Reform Act (the “SLRA”) specifically contemplates that certain types of proceedings may be commenced by the surviving spouse notwithstanding any agreement which may have been entered between the parties saying otherwise. These types of proceedings include an Application for support as a dependant under Part V of the SLRA, where section 63(4) contemplates:

 “An order under this section [i.e. dependant’s support] may be made despite any agreement or waiver to the contrary.”

In Butts Estate v. Butts (1999), 27 E.T.R. (2d) 81, Justice Killeen provides the following commentary on how the court may interpret the provisions of a marriage contract in the wider context of an Application commenced by a surviving spouse for dependant’s support:

“…s. 63(4) gives the court a broad judicial discretion to award support to a dependant, as defined in s. 57, notwithstanding the existence of any prior agreement or waiver. The language of s. 63(4) could not be broader or clearer in its purpose and is obviously aimed at achieving justice and equity at the date of the hearing, notwithstanding what the parties might have agreed to earlier on.”

Simply put, the court may ignore any marriage contract or other agreement that may have been entered into between the parties in making an Order for dependant’s support under Part V of the SLRA. If the court is of the opinion that the surviving spouse is a dependant within the requirements of Part V of the SLRA, then they are free to make an Order providing for their support notwithstanding any agreement entered between the parties which may provide otherwise.

Thank you for reading.

Stuart Clark

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