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.