Russell-ing Out of Contract? Katy Perry and Russell Brand Sign Comprehensive Agreement

On February 8, 2012, People.com reported that Katy Perry and Russell Brand reached a "comprehensive written settlement of all issues" relating to their divorce and separation. Since the couple had no children, the agreement simply covered the distribution of the couple's property. Russell Brand voluntarily agreed to not seek support from his higher-income earning wife. However, since the couple had no prenuptial agreement in place, legally Russell Brand may have sought support. In Ontario, and pursuant to the Spousal Support Advisory Guidelines, it is likely that said support would have been for a limited period of time, given the fact that Russell and Katy are both young, employed and were married for a short period of time, namely one year.

In Ontario, domestic contracts, such as separation agreements are governed by the Family Law Act, and pursuant to s.54 "Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, which include but are not limited to ownership in or division of property and support obligations".

Therefore, while Katy and Russell were well within the boundaries prescribed by the law in Ontario when drafting their separation agreement, what recourse would they have if, in a couple of years, they decided that they were unhappy with same and wanted to somehow set aside either the whole agreement or a provision therein?

They would need to look to s.56(4) of the Family Law Act which states the following:

"A court may, on application, set aside a domestic contract of provision in it,

(a) If a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) If a party did not understand the nature or consequences of the domestic contract;or

(c) Otherwise in accordance with the law of contract."

The above factors create a very difficult test to meet and set a high standard for the party who wishes to set aside their domestic contract. Some examples of situations that could result in the setting aside of a domestic contract are the following:

  • If one party failed to produce sufficient financial disclosure to the other side thereby misrepresenting the value of their assets and liabilities and then allowed the party to sign the contract to his or her detriment;
  • If one party did not obtain independent legal advice while the contract was being negotiated and as such did not have his or her rights fully represented or protected during said negotiation and then signed the domestic contract again to his or her detriment;
  • If one party was forced to sign the domestic contract by the other party exerting pressure or undue influence; or
  • If the contract was not properly in writing, signed or witnessed.

Therefore, if Russell wants to re-negotiate his voluntary waiver of spousal support or if Katy is unhappy with the division of property and they resided in Ontario then they would have to meet the above mentioned stringent test.

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