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.