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V A N C O U V E RT O R O N T OM O N T R É A LC A L G A R YE D M O N T O NW H I T E H O R S EY E L L O W K N I F ET O K Y O
D a v i s& Co m p a n y
Domestic Contracts: Case Comment on Hartshorne v. HartshorneandS.M.J. v. R.H.C.W.
by Grace Choi July, 2004
If you have signed a prenuptial agreement, or are considering signing one, a recent decision by the
Supreme Court of Canada may impact how that contract will stand up to a future court challenge.In
Hartshorne v. Hartshorne, the Court upheld a marriage contract, or “prenup”, between the Hartshornes,
despite Mrs. Hartshorne’s claim that the agreement should be set aside due to unfairness.In BC, as in
most other provinces, couples can enter into contracts governing the distribution of assets in the event
of marriage breakdown.Entitlements in these contracts replace the presumptive equal division
provided for in family property legislation, but are subject to modification by the courts if found to be
unfair at the time the property is being distributed.
The Hartshornes, both lawyers, were married for nine years and lived together for twelve.It was a
second marriage for both.Mrs. Hartshorne left the practice of law to care for the couple’s two children,
the second of which was born a few months after their wedding.Before the wedding, Mr. Hartshorne
informed Mrs. Hartshorne that he would never again allow a division of his property (as had occurred
at the end of his first marriage), and asked her to sign a marriage agreement.At the time, Mr.Hartshorne
was bringing approximately $1.6 million in assets into the marriage, while Mrs. Hartshorne was entering
the marriage without substantial assets and in debt.The agreement, drafted approximately one month
before the wedding, specified the parties would be separate as to property, and gave Mrs. Hartshorne
a 3% interest in the matrimonial home for each year of their marriage, to a maximum of 49%.Nine
days prior to the wedding, Mrs. Hartshorne obtained independent legal advice and was advised by her
lawyer that the agreement was “grossly unfair”.She did not want to sign; however, at her husband’s
insistence, Mrs. Hartshorne signed the agreement on their wedding day.
The parties separated in 1998, and in the divorce proceedings Mr. Hartshorne relied on the agreement
to avoid the presumption of an equal division of family assets under the BCFamily Relations Act. The
Act expressly allows for marriage agreements as a method of settling the distribution of property on