The Hartshonre Pre-Nup: Limited Impact in Quebec by Ian M. Solloway

It has now been over 5 years since the widely-reported decision of the Supreme Court of Canada in Hartshorne v. Hartshorne, in which our country’s highest Court upheld the enforceability of a British Columbia pre-nuptial agreement wherein the future wife waived her right to any equal division of the family assets under British Columbia law in the event of marriage dissolution.

The Parties, who were both lawyers, began to cohabit in 1985 and their first child was born in 1987. They married in 1989, a second marriage for both, and a second child was born later that year. Nine years later, they separated. From the time of the birth of their first child, the wife withdrew from the practice of law to remain at home to raise the children. The husband brought assets worth approximately $1.6 million into the marriage, including his law practice, while the wife entered the marriage with no assets and heavily in debt. The husband had made it clear to the wife before the marriage that given the partition of property that occurred after he and his first wife separated, he would never again allow a division of his property.

Prior to their wedding, the husband insisted that the wife sign a pre-nuptial agreement stipulating that they would be separate as to property, but with a provision that the wife would be entitled to a 3% interest in the matrimonial home for each year that the parties were married up to a maximum of 49%. The wife had obtained a legal opinion prior to signing the pre-nuptial agreement that the said agreement was grossly unfair. However, she nonetheless signed the agreement with a few amendments, including a clause confirming her right to spousal support.

Pursuant to the pre-nuptial agreement, Ms. Hartshorne was entitled to property valued at $280,000.00 upon separation while Mr. Hartshorne was entitled to property worth $1.2 million.

In their divorce proceedings, Mr. Hartshorne relied upon the pre-nuptial agreement to avoid the operation of the statutory partition of family assets under British Columbia law, while Ms. Hartshorne argued that the pre-nuptial agreement should be set aside because the agreement was “unfair” under the British Columbia Family Relations Act (“FRA”). The trial Court and the Court of Appeal both concluded that the Hartshorne pre-nuptial agreement was “unfair” and ordered the reapportionment of the family assets. The Supreme Court of Canada disagreed, concluding that the Hartshorne pre-marital agreement was substantively fair under the FRA and therefore valid and enforceable. In its “fairness analysis”, the Supreme Court concluded that private arrangements that spouses make for the division of their property on the breakdown of their marital relationship should be respected particularly where the agreement in question was negotiated with independent legal advice. In this case, the implications of the pre-nuptial agreement were understood by the Parties, Ms. Hartshorne having specifically reviewed its shortcomings with her lawyer. Moreover, the explicit preservation of a right to spousal support was an amendment made to the draft agreement at the insistence of Ms. Hartshorne, supporting an understanding on her part that her future needs could be met through alimony. Furthermore, by signing the pre-nuptial agreement, the Hartshorne’s entered into their marriage with certain expectations on which they were reasonably entitled to rely.

What is the impact of the Hartshorne decision in Quebec? Does Hartshorne mean that spouses marrying in Quebec are able to make similar types of pre-marital agreements?

Since July 1, 1970, under Quebec law, spouses who marry in the Province of Quebec without a Marriage Contract, are deemed to have adopted as their Matrimonial Regime (i.e. the law governing their property relations during the marriage) that of Partnership of Acquests. Simply stated, under the legal regime of Partnership of Acquests, the property owned by each spouse as at the date of marriage is his or her private property as the case may be and the property acquired by each spouse during the marriage is his or her acquest, save and except for gifts and legacies which remain private property. All interest and / or revenues generated from a spouse’s private property or acquests are his or her acquests. At the time of marital dissolution, each spouse has the right to accept or renounce the partition of the other spouse’s acquests.

The Parties can contract out of or alter the legal regime of Partnership of Acquests in Quebec by signing a Marriage Contract wherein they can adopt the matrimonial regime of Separation as to Property. Under a separation regime, any property acquired by either spouse prior to or during the marriage is his or her sole and exclusive property. It is to be noted, however, that in executing a Quebec Marriage Contract electing to be separate as to property, the spouses are not signing a divorce contract under Quebec law. Neither spouse can be considered as having contracted out of his or her rights to any claims, rights or entitlements that each may have against the other spouse as a matter of public order upon marital dissolution.

In 1989, the Quebec legislature introduced the concept of “family patrimony” into Quebec law. As of July 1, 1989, all marriages in Quebec entail the establishment of a family patrimony, which comprises six (6) categories of assets, namely:

1. 
   
   the principle and secondary family residence(s)
   
   
   
2. 
   
   household furniture used by the family
   
   
   
3. 
   
   vehicles used for family travel
   
   
   
4. 
   
   private pension plan contributions during the marriage
   
   
   
5. 
   
   retirement plan contributions during the marriage (RRSP’s / LIRA’s)
   
   
   
6. 
   
   registered earnings of each spouse during the marriage under the Quebec Pension Plan
   
   
   

Quebec law provides that regardless of where the spouses were married, whether in Quebec or elsewhere, irrespective of their matrimonial regime and regardless of which spouse owns the aforementioned assets comprising the family patrimony, spouses who are domiciled in Quebec at the time of the institution of their divorce proceedings are subject to the imperative rules of family patrimony and thus have the right to partition equally the net value of the family patrimony assets. Moreover, and most importantly, inasmuch as the rules relating to family patrimony are of public order in Quebec, the Parties cannot contract out of them prior to or during the marriage, whether by Marriage Contract or otherwise. Any such agreement outside the context of marital dissolution proceedings whereby the spouses express their wish to exclude the operation of the rules of family patrimony is illegal and would be unenforceable by the Courts in Quebec. It is only after separation or divorce proceedings have been taken can the Parties “contract” with regard to their respective family patrimony rights.

Therefore, a Quebec pre-nuptial agreement or marriage contract could not remove the spouse’s right to demand an equal partition of the net value of the family patrimony upon divorce. The Hartshorne decision would thus seem to have changed little if anything insofar as the Quebec marriage contract and the applicability of Quebec’s family patrimony rules are concerned.

Damages For Breach of Ghet Undertaking In Divorce Settlement re: Supreme Court by Ian M. Solloway

In a 7-2 decision issued on December 14, 2007, the Supreme Court of Canada ruled in a landmark judgment that civil courts are capable of adjudicating the contractual breach of religious undertakings.

The relevant facts of the case are as follows:

In their divorce settlement agreement (“Consent to Corollary Relief”), the husband Mr. Jason Marcovitz and the wife, Ms. Stephanie Bruker agreed to appear before the rabbinical authorities for the purpose of obtaining the traditional religious Jewish divorce (“the Ghet”) immediately upon the Decree Nisi of divorce being granted. The civil divorce of the Parties pronounced by the Quebec Superior Court became final in 1981 when Mr. Marcovitz was 48 years of age and Ms. Bruker was 31 years of age. Shortly after their divorce, Ms. Bruker, personally and through various Rabbis, called upon Mr. Marcovitz to comply with his obligation to give her the “Ghet” which Mr. Marcovitz refused to do on the grounds that Ms. Bruker’s behaviour since the divorce constituted harassment and an attempt by her to alienate him from his children.

Under Jewish law, a wife cannot obtain a “Ghet” unless her husband voluntarily agrees to give it. Without a “Ghet”, a Jewish woman cannot re-marry religiously. She remains an “aguna”, a woman who is “chained” to her ex-husband.

Moreover, Jewish law considers that any children of an “aguna” who subsequently re- marries civilly to be illegitimate. Despite Ms. Bruker’s repeated requests, Mr. Marcovitz consistently refused to provide a “Ghet” for 15 years following the divorce of the Parties, by which time Ms. Bruker was almost 47 years of age. Ms. Bruker eventually sued Mr. Marcovitz, originally for $500,000.00. She later increased her damage claim to $1,350,000.00, alleging that her ex-husband’s failure to give her a “Ghet” for 15 years constituted a breach of contract which ruined her ability to re-marry within the Jewish faith and to fully proceed with her social and religious life. At trial, the Superior Court judge ruled that the obligation undertaken by Mr. Marcovitz to provide the “Ghet” to Ms. Bruker was one of a civil contract notwithstanding its religious undertones and awarded damages to Ms. Bruker in the amount of $47,500.00, $2,500.00 for each of the 15 years between her civil divorce and the “ Ghet’’ and $10,000.00 for Ms. Bruker’s inability to have children considered “legitimate’’ under Jewish law.

On appeal, Hilton, J.A., writing for the Quebec Court of Appeal, stated that compelling the appearance of an ex-husband before a rabbinical tribunal to obtain a “Ghet” was not within the power of a civil court to properly order. The Court further held that the undertaking of the husband to give a “Ghet” to the wife was a religious or at best a moral rather than a civil obligation which is not justicable by the secular (i.e. civil courts) whether by way of injunctive order for specific performance or by way of an award of damages in the event of a breach.

In overturning the judgment of the Quebec Court of Appeal and restoring the judgment of the trial court, the Supreme Court of Canada ruled that the fact that a dispute has a religious aspect does not in and of itself make the matter non-justicable. The high court held moreover that the promise by the ex-husband to provide a “Ghet” was part of a voluntary exchange of commitments intended to have legally enforceable consequences, negotiated between two consenting adults, each represented by counsel. In short, the said undertaking in a divorce settlement agreement was a valid and binding contractual obligation under Quebec law. The Court was not being asked to determine doctrinal religious issues. Moreover, there was nothing in the Quebec Civil Code preventing someone from transforming his or her moral obligation into a legally valid and binding one which, according to Madame Justice Abella, writing for the majority of the Supreme Court, “puts the obligation appropriately under a judicial microscope”.

The Supreme Court also held that Mr. Marcovitz was not entitled to immunity from damages for his unilateral contractual breach under s.3 of the Quebec Charter of Human Rights and Freedoms. The claim to religious freedom must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada’s fundamental values. The majority of the Court did not accept Mr. Marcovitz’s contention that his refusal to provide Ms. Bruker with a “Ghet” was a result of his religious beliefs. The majority was further of the view that any impairment to Mr. Marcovitz’s religious freedom was significantly outweighed by the harm both to Ms. Bruker personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce.

What then are the implications of the Supreme Court judgment in the Bruker case? There is no doubt that the landmark judgment represents a watershed in the advancement of the rights of Jewish women who now have the assurance that the failure of a Jewish husband to follow through in a timely manner with his “Ghet undertaking”, agreed to in a divorce settlement may expose him to civil damages.

Jewish women may also seriously wish to consider a “Ghet clause” in their marriage contract, which would afford them the same protection that a “Ghet undertaking” now provides in a divorce settlement Agreement as a result of the Supreme Court decision in Bruker, but obviating the necessity of negotiating such an undertaking in the event of a future divorce.

Similarly, women of other faiths who remain at the behest of their husbands to provide them with a religious divorce should also now ensure that “a religious divorce undertaking” be stipulated in their pre-nuptial marriage contract.