If anyone has ever thought about entering a marriage contract or is already a part of one, then you must, presumably after a careful consultation with your family lawyer in Toronto, realize that you need to disclose certain assets. There was a very interesting distinction made in a recent case, by the name of Capar v. Juknovic, between disclosing the existence of an asset versus the value of an asset.
In that case, at the time that the spouses were dating, the wife owned and lived in a house, which she purchased prior to their dating relationship. After they got married, the husband moved into that house, and it was used as the matrimonial home. The husband did not bring any assets into the marriage.
After they got married, the couple entered into a marriage contract, and a few years later they were separated. Marriage contracts can be drafted by family lawyers before or after marriage. In this case, the main issue upon separation was this house, as it had increased in equity. In the marriage contract, it was stipulated that any increase in the equity of the home would be excluded from equalization. The husband wanted the marriage contract to be set aside by the court in order to gain his share of the increase in equity.
One of the main issues in determining whether the marriage contract was valid had the judge considering the wife’s level of disclosure. The court concluded that the wife disclosed the existence of the house prior to the contract and there was no requirement to disclose its value. One of the main goals of their marriage contract was to preserve the wife’s equity in the home. In the end, unfortunately for the husband, the marriage contract was not set aside.
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