A severability clause ensures that if an Ontario judge strikes down one illegal part of your marriage contract, the rest of your agreement survives. Without it, a single error could void the entire document. Drafting a secure contract generally costs around $2,500 CAD.
Drafting a marriage contract in Ontario involves a delicate balancing act between your personal financial wishes and strict provincial laws. Sometimes, couples accidentally include provisions that severely violate the Family Law Act. If you live in London, Hamilton, or Toronto, knowing how local courts handle these errors is vital. A severability clause acts as your legal lifeboat, ensuring that a small mistake does not sink your entire financial future.
When a dispute reaches the Superior Court of Justice, a judge will scrutinize your contract. If they find an illegal clause-such as an attempt to waive child support or a bizarre lifestyle rule-they will strike it down. If your contract lacks a severability clause, the judge may declare the entire agreement void, forcing you into standard 50/50 equalization. To prevent this disaster, always ensure your agreement is drafted by a qualified lawyer from our directory.
Step-by-Step Process in Ontario
Securing your marriage contract against total invalidation is a standard practice for experienced family lawyers. Here is the process used to ensure your agreement remains enforceable even if parts of it are challenged.
Step 1: Identify Risky or Illegal Clauses
The first step is reviewing your desired terms with a lawyer. Ontario law strictly forbids certain clauses. For instance, you cannot legally dictate child custody arrangements or child support amounts in a marriage contract. Furthermore, courts often strike down extreme “lifestyle clauses” (like penalties for weight gain). Your lawyer will identify these risks upfront.
Step 2: Insert the Severability Clause
Once the terms are negotiated, your lawyer will draft the severability clause. This is a standard legal paragraph stating that if any specific provision is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, that specific provision shall be severed (cut out), and the remaining provisions will continue in full force and effect.
Step 3: Finalize Financial Disclosure
Even with a perfect severability clause, your contract can still be completely voided if you lie about your finances. Both spouses must exchange full and frank financial disclosure. You must provide official statements for your real estate, investment accounts, and debts. A severability clause cannot save a contract tainted by financial fraud.
Step 4: Sign with Independent Legal Advice
Finally, both parties must review the contract with separate lawyers to receive Independent Legal Advice (ILA). This proves that neither party was forced or tricked into signing the agreement. Once the ILA certificates are attached, the document is signed, witnessed, and safely stored.
How Much Does it Cost in Ontario?
Protecting your assets with a professionally drafted marriage contract is an investment. Attempting a DIY contract to save money often results in voided agreements. Typical costs include:
- Primary Lawyer Fees: Drafting a custom marriage contract with robust protective clauses usually costs between $2,000 and $4,000 CAD.
- Independent Legal Advice (ILA): The mandatory second lawyer for your spouse will generally charge between $500 and $1,500 CAD to review the document.
- Litigation Costs: If your contract lacks a severability clause and goes to trial, fighting to uphold it in the Superior Court of Justice can easily cost upwards of $20,000 CAD in legal fees.
| Clause Type | Legal Status in Ontario | Impact with a Severability Clause |
|---|---|---|
| Property Equalization Waiver | Valid (if properly disclosed). | Remains fully intact and enforceable. |
| Child Custody Predetermination | Void / Illegal. | Clause is removed, but property waivers survive. |
| Spousal Support Waiver | Valid (but highly scrutinized). | If struck down for unfairness, the rest of the contract survives. |
How Long Does the Process Take?
Drafting a secure marriage contract is not an overnight process. ⌛ From the initial consultation to the final signing, you should expect the process to take 4 to 8 weeks. If your finances are highly complex, involving multiple corporations or international assets, it could take up to 3 months. Always begin the process well before your wedding date to ensure there is no appearance of last-minute pressure.
Frequently Asked Questions (FAQ)
Can a judge ignore a severability clause?
Generally, courts respect severability clauses. However, if the illegal portion of the contract is so deeply intertwined with the rest of the agreement that removing it destroys the entire purpose of the contract, a judge may still void the whole document.
What makes an entire marriage contract void?
An entire contract can be voided if there was a failure to disclose significant assets, if one party was forced to sign under extreme duress, or if neither party received Independent Legal Advice (ILA).
Do I really need ILA for a simple contract?
Yes. In Ontario, while ILA is not strictly mandatory by statute, practically every family law judge will look for it. Contracts signed without ILA are routinely challenged and struck down.
Can we write our own severability clause?
While you can find templates online, it is highly risky. Standard boilerplate language might not align with current Ontario Family Law Act precedents. Having a local family lawyer draft the clause ensures it holds up in court.
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