Pre-nuptial Agreement Back

In this 2011 case, the parties had a Pre-nuptial Agreement signed in 2004 as well as a Cohabitation Agreement signed in 2001.

The negotiation of this case was aided greatly by the existence of these two agreements. For the purposes of this case study, the Applicant is the husband, and the Respondent is the wife.

The parties were married in July 2005 after having lived together since 2000. The marriage broke down without possibility of reconciliation in or about April 2011. The Respondent resides in the matrimonial home and the Applicant vacated the matrimonial home in or about September 2011.

On July 24, 2001 the parties executed a Domestic Contract. The contract is clear that there is to be no division of property individually held by a party and that only jointly owned property is to be divided between the parties, effectively resulting in an equal division of only jointly owned assets.

Since the date of separation, the Applicant has sought the respondent's compliance with the parties' Domestic Agreements and for her to either purchase his interest in the home or have the home listed and sold immediately.

The parties have no jointly owned assets except for household goods, a BMW, and the matrimonial home.

The 2001 Contract provided that upon separation the applicant would be entitled to 35% of the net equity in the property and that the respondent would be entitled to the remainder of the net equity.

In accordance with parties' Domestic Agreements, the Applicant has been solely responsible for the payment of the mortgage and property taxes, together with 50% of the other household expenses to date.

The Applicant earns approximately $107,000 per year. The Respondent is self employed as an aesthetician and works out of her home. Her reported annual income was approximately $9,000.

Applicant's Position:
The Applicant wants the matrimonial home to be sold and the net equity divided between them in accordance with the terms of the Domestic Agreement. Pursuant to the Agreement, the Applicant is entitled to 35% of the net equity in the property and the Respondent is entitled to the remainder.

Respondent's Position:
The Respondent wanted to stay in the home and purchase the Applicant's interest in the home but also wanted the Applicant to be responsible to pay the mortgage on the title of the matrimonial home until she could arrange financing.

How it was resolved:
Because the parties had taken the time to complete a Domestic Contract in 2004 and a Cohabitation Agreement in 2001, the division of the Net Family Property was not contested, saving both parties time in negotiation and money in legal fees.

In the end, the Respondent purchased the Applicant's interest in the matrimonial home, and transferred to him a sum equivalent to the 35% of the matrimonial home's value, less a reduction as a lump sum spousal support payment to the Respondent.

The Respondent arranged a discharge/release of the Applicant's liability on the mortgage.

The Applicant continued to pay the ongoing mortgage payments and property taxes up until the date of closing.

The Respondent got the BMW.

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