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Oct 20, 2025

Can A Judge Set Aside A Post-Nuptial Agreement?

by Steve Benmor

Can a judge set aside a post-nuptial agreement? Short answer: Yes. So, be careful that your post-nuptial agreement does not go too far.

Generally, a post-nuptial agreement is designed to clarify the division of assets and liabilities between spouses in the event of separation or divorce. However, judges retain the discretion to set aside such agreements if they fail to meet fundamental contractual principles.

In Franklin v. ten Berge (2016), ONSC 4036, the Ontario Superior Court of Justice set aside a post-nuptial agreement due to inadequate financial disclosure and impermissible restrictions on the matrimonial home.

This case underscores two crucial aspects of family law: the necessity of full and honest financial disclosure and the inviolable right to occupy the matrimonial home.

A cornerstone of any valid domestic contract, including a post-nuptial agreement, is full and frank financial disclosure. Without it, there can be no true “meeting of the minds”—a fundamental requirement for contract formation. In Franklin v. ten Berge, the judge found that the wife had failed to provide accurate and complete financial disclosure regarding significant assets and debts at the time the post-nuptial agreement was executed, and so the husband should not be held to its terms.

The judge’s analysis rested on Section 56(4) of the Ontario Family Law Act, R.S.O. 1990, c. F.3 , which permits a court to set aside a domestic contract where a party fails to disclose significant assets, liabilities, or debts that existed at the time of the agreement. The judge emphasized that non-disclosure deprives the affected party of an informed opportunity to assess the fairness and implications of the agreement. In this case, the husband was unaware of the true value of the matrimonial home and certain financial obligations, leading to a misinformed consent that invalidated the contract’s legitimacy.

The ruling noted that the spouses were careless in verifying financial details, and the agreement contained unclear and ambiguous terms regarding ownership and repayment obligations. The judge determined that no valid contract had been formed, and, without a true meeting of the minds, the post-nuptial agreement was fundamentally flawed and could not stand.

 Another critical reason for setting aside the post-nuptial agreement was its attempt to limit the husband’s statutory right to occupy the matrimonial home. Under Ontario law, the right to possess and reside in a matrimonial home is sacrosanct and cannot be unilaterally altered through a domestic contract. Section 52 of the Family Law Act, R.S.O. 1990, c. F.3 explicitly states that a marriage contract may not limit a spouse’s rights concerning the matrimonial home. Despite this clear prohibition, the post-nuptial agreement sought to restrict the husband’s rights related to his home. The judge found this provision unenforceable and, given its significance, held that the entire post-nuptial agreement could not be upheld.

Key Takeaways

Full financial disclosure is essential: Courts will not enforce domestic contracts if a spouse fails to disclose significant financial information. Non-disclosure undermines the principle of informed consent and can lead to the entire agreement being set aside.

Meeting of the minds is critical: If a post-nuptial agreement is based on incorrect or incomplete financial assumptions, the contract may be deemed void due to the lack of a true agreement between the parties.

Matrimonial home rights cannot be contracted away: The Family Law Act, R.S.O. 1990, c. F.3 prohibits any contractual term that restricts a spouse’s statutory rights concerning the matrimonial home. Attempting to include such provisions risk invalidating the entire contract.

Judicial discretion in setting aside agreements: Courts have broad discretion under Section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 to set aside domestic contracts based on non-disclosure, lack of understanding, or general contractual principles. Each case is fact-specific, and judges will weigh the fairness and transparency of the agreement.

In conclusion, the case of Franklin v. ten Berge serves as a cautionary tale for spouses entering into post-nuptial agreements and for lawyers drafting such contracts. The case reaffirms the necessity of financial transparency and adherence to statutory protections for the matrimonial home. Inadequate disclosure and attempts to circumvent legal rights will not withstand judicial scrutiny, emphasizing the importance of meticulous due diligence and compliance with family law principles when negotiating post-nuptial agreements.

CASE LINK:

https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4036/2016onsc4036.html?resultId=b455054b60174a7f85be036eb75954db&searchId=2025-01-19T12:42:46:135/628ff3322fc545a69d16b35770951e9f

 

Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.