Earlier this week, there were reports that Hugh Hefner would not be having
a pre-nup in place when he marries his fiancé Crystal Harris this
June. Hefner is reportedly worth more than $40 million dollars. Yesterday,
he took to his Twitter account and clarified the rumors stating, “I
had a pre-nup the last time I got married. Why would anyone assume I wouldn’t
have one this time? A pre-nup protects everyone.”
What if Hugh and Crystal were marrying in Ontario?
In Ontario, Hugh and Crystal would be entering into a marriage contract,
instead of a Pre-Nup. Pre-nuptial agreements and marriage contracts are
one in the same, but they have different names based on the laws in Canada
and the United States. Pursuant to s. 52 of the
Family Law Act, two people who are married or intend to get married can enter into a
contract in which they agree on their respective rights and obligations
under the marriage or on separation or on death. The contract can deal
with issues such as:
- ownership in and division of property;
- support obligations;
-
the right to direct the education and moral training of their children, but
not the right to custody of or access to their children; and - any other matter in the settlement of their affairs.
With respect to Hugh and Crystal, they can agree to how they will divide
their property if they were to divorce in the future, which party would
owe support (if any) to the other, and any other matter which they feel
would make it easier for them to come to a resolution if they were to separate.
As Hugh is 85 years old and although it seems unlikely, it should be noted
that while the two can agree on the upbringing of their children, they
are not allowed to agree in a marriage contract on who would have custody
of and access to these children. They are not allowed to agree in their
marriage contract to limit either of their rights to the Matrimonial Home,
which in this case is the Playboy Mansion. If there was a clause which
was put into the contract limiting the rights to same, it would be unenforceable.
In addition, Hugh’s age may or may not play a factor in the drafting
of this specific marriage contract. As mentioned, Hefner will be 85 years
old when the couple marries and as such, the couple may also want to include
provisions relating to how the ownership and division of property or support
obligations will be handled if Hugh were to die prior to them separating.
The same limitations would apply, however, as to what the couple would
be able to agree to in the contract regarding, for example, the matrimonial
home. Hugh would also want to ensure that his will was in line with the
contract in order to avoid any problems that may occur should the two
be contradictory.
Looking to the future, if the couple decides to separate, either party
may apply to the court to have the contract set aside for one of the following reasons:
- a party has failed to disclose to 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 general reasons such as undue influence, duress, mistake, etc.
In the event that the agreement is set aside in the future, this matter
would be dealt with by the Court as if there was never a marriage contract
in place. In the event that Hugh dies and the marriage contract had provisions
in place regarding his death, Crystal would still be able to attend at
the Court to have the contract set aside, but Hugh’s estate would
be the other party to the matter.
Often when parties have marriage contracts in place and they attempt to
have them set aside, they may argue that specific clauses were not clear
enough or they did not understand their consequences when signing the
contract. In these situations, the Court must look for an interpretation
that is in accordance with the parties’ intention at the time the
contract was signed. If there is an interpretation that would produce
a result that the parties would not have reasonably expected at the time
they entered into the contract, then that interpretation should be rejected.
Again, for Hugh and Crystal, the more clear and specific they can make
their contract, the better it will be in the future should they separate.
Find more information on
marriage contracts here.