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TMZ reports that Ryan Sweeting and Kaley Cuoco have filed for divorce after a little more than two years of marriage. The settlement of their divorce is anticipated by many to be briefer than their marriage due to a prenuptial agreement which may settle all property and spousal support issues.

Prenuptial agreements, also known as marriage or domestic contracts, are often used by Canadian couples prior to marriage to set out their respective post-separation and post-divorce rights relating to finances and property.

For Cuoco, one of television's highest paid actresses, a prenuptial agreement seems to be a prudent safeguard to protect her future rights and obligations. However, while prenuptial agreements may make the divorce process more efficient, they are not infallible. With Sweeting's net worth estimated to be $2 million to Cuoco's $45 million, what if he later finds that the end result was unfair to him in the long run?

If this celebrity couple were divorcing in Ontario, there are avenues Sweeting might pursue in such a hypothetical situation.

Under Section 56(4) of the Family Law Act, a court may set aside a domestic contract if:

  • A party has failed to disclose the other significant assets or debts that existed at the time the contract was entered into;
  • A party did not understand the nature or consequences of the contract; or
  • For any reason under contract law such as fraud, mistake, or undue influence.

Sweeting's first hurdle would be to demonstrate at least one of the grounds in section 56(4) before a court would even consider whether it should exercise its discretion. Once he passes that threshold, he would have to further sway the court to rule in his favour.

Individuals entering into marriage contracts must do so with full knowledge and understanding of the contract's consequences on their future rights and obligations. As such, the grounds in section 56(4) focus primarily on the circumstances at the time the contract was signed. For example, if Sweeting received independent legal advice prior to entering the marriage contract, a court may be hesitant to interfere. However, refusing to seek independent legal advice in situations where there may be sparse or inadequate financial disclosure would not endear a court to a claim of unconscionability.

Alternatively, if Sweeting wanted a provision or waiver relating to spousal support set aside, he might seek relief under Section 33(4) of the Family Law Act. To be successful, Sweeting would have to demonstrate that the provision or waiver of his support rights either results in unconscionable circumstances or him having to depend on public funds such as social assistance. Given Sweeting's own significant income, however, the latter avenue is highly unlikely.