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The Law of Contracts (Part 1)

August 9, 2021

Alberta

,

Canada

Issue

When will a separation agreement be found invalid?

Conclusion

Contractual relationships reduced to writing and freely entered into by parties should not be readily interfered with. The law of contract presumes that adult parties in positions of equal bargaining power, with full disclosure, and the advantage of independent legal advice should be able to organize their affairs and resolve their disputes in the manner they see fit. This principle is codified in the provisions of the MPA and the FPA, specifically sections 37 and 38 of each Act. (McAulay v McAulay)

If matrimonial property is to be divided by agreement rather than by a Court through the processes set out in Part 1 of the Act, such an agreement is to be accomplished by parties who have reasonable bargaining power and understanding of their legal rights. Accordingly, s. 38 sets out essential acknowledgments by the spouses which are necessary to make enforceable agreements under s. 37 of the Act. (Diegel v. Diegel)

The person challenging the validity of a separation agreement bears the burden of proof, on a balance of probability, to demonstrate that the Agreement is void as a consequence of duress, unconscionability, lack of disclosure, or failure to meet the requirements of s. 38 of the Matrimonial Property Act. (McAulay v McAulay)

Duress

To prove that an agreement is executed under duress, a plaintiff must demonstrate that the pressure was so great as to deprive him of the ability to exercise independent judgment. It is generally recognized that parties to settlement negotiations face a certain degree of economic pressure and may be in discrepant bargaining positions. Absent unconscionability or duress, economic pressure, not created by the actions of the opposing party, should not undermine the agreement. (McAulay v McAulay; Tardif v. Campbell)

Unconscionability

While a lower standard for unconscionability may apply in family law proceedings proof of unconscionability requires evidence of an inequality in bargaining positions and an improvident bargain. (McAulay v McAulay)

Lack of Disclosure

In Hinton v. Hinton, Macklin J. held that the circumstances of the case did not give rise to any duty on the husband which would compel complete, detailed disclosure of his assets. He held none of his assets on behalf of the wife at the time the Agreement was signed. By signing the Agreement, the parties were negating the creation of any such duty, as it expressly stipulated that the wife would acquire no rights in his existing assets. In the agreement, the wife, in the agreement, acknowledged that she was fully acquainted with the business, skills, assets, resources health, prospects and liabilities of the Defendant, understood that he was obliged with regards to informal family trusts, and acknowledged that he had answered to her satisfaction all questions she has asked about the husband’s business, skills, assets, resources health, prospects and liabilities. Macklin J. was satisfied that the wife had sufficient awareness of the husband’s assets to understand the nature and effect of the agreement, and, in the circumstances of this particular case, the alleged failure to disclose a detailed accounting of his property was immaterial.

Failure to meet the requirements of s. 39 of the Matrimonial Property Act

Settlement agreements made by separating spouses are governed by ss 37 and 38 of the Matrimonial Matrimonial Property Act. Section 38 states that a written agreement providing for the division of property that is owned by either or both spouses is enforceable if each spouse has acknowledged, in writing, apart from the other spouse that the spouse or person is aware of the nature and the effect of the agreement. The acknowledgement must be made before a lawyer. Lawyers are required to ensure that the person who enters into the agreement does so with a full understanding of the nature and effect, or the meaning and consequences of the arrangement agreed to in terms of the responsibilities or obligations thereof. (RMK v NK)

The MPA and FPA set forth the execution requirements to ensure enforceability. Section 38 requires that an agreement be executed by the parties in writing, apart from each other, and that the parties acknowledge that they are aware of the nature and effect of the agreement, that they are aware of the possible future claims they may have, and are giving up those claims to the extent necessary to give effect to the agreement, and that the party is executing the agreement freely, voluntary, and without compulsion of the other party. Each spouse must make these acknowledgements before separate lawyers. (McAulay v McAulay)

The executed Certificates of Acknowledgment attached to such agreements are strong evidence that the statutory duties were complied with. Those documents speak for themselves and the onus is on the party challenging their content to rebut them. (RMK v NK)

In P.D.B. v. J.A.B., the parties separated after 19 years of marriage and entered into a separation agreement (the "Agreement)`. The Agreement was negotiated without the retained assistance of legal counsel. After execution, both parties attended upon counsel to execute a Matrimonial Property Act Acknowledgement (“Acknowledgment”) Section 38 certificate and obtained certificates of Independent Legal Advice from members of the Law Society of Alberta. The husband argued that the Agreement was not enforceable on the grounds that he did not fully understand the nature of the Agreement and that he did not receive adequate or independent legal advice from Mr. Peterson. The husband executed a certificate pursuant to s. 38 of the Matrimonial Property Act acknowledging that he was executing the Agreement separate and apart from his wife, that he was aware of the nature and effect of the Agreement, that he was aware of his possible claims under the Act and that he executed the Agreement freely and voluntarily. He acknowledged all the essentials necessary to enforceable make the Agreement. Sullivan J. held with respect to the matrimonial property the requisite statutory formalities of ss. 37 and 38 were met. The Agreement was enforceable because it was entered into voluntarily and freely and it related to the intentions of the parties and met the needs of both Mr. and Ms. and the demands of the legislation.

In Hinton v. Hinton, the plaintiff sought distribution of matrimonial property contrary to the terms of a prenuptial agreement signed before her marriage to the Defendant in 1997. She claimed the Agreement should not be binding on her because of a lack of proper independent legal advice, inadequate disclosure, undue influence and duress. Macklin J. held that, to give practical effect to s. 38 of the Matrimonial Property Act, each spouse should be able to rely on the Acknowledgement signed by the other at face value. In light of the Plaintiff’s signed Acknowledgement, the Plaintiff cannot claim now that she did not receive independent legal advice. Macklin J. also held that the alleged non-disclosure by the Defendant was immaterial and would not be such to constitute a breach of the Agreement, nor to render it unenforceable under s. 38 of the Matrimonial Property Act. Macklin J. found that the independent legal advice given the Plaintiff was complete and proper in the circumstances. She executed the Agreement with a full understanding of its terms and their effect. Finally, Macklin J. concluded that there was no undue influence or duress regarding the signing of the Agreement whether arising from the Defendant’s position as a lawyer or because of her emotional state has not been established on the Plaintiff’s evidence, and the allegation is further effectively met and rebutted by the evidence of Mr. Hautmann and the Acknowledgement signed by the Plaintiff which provided, in Clause 4, that the Plaintiff was executing the Agreement “freely and voluntarily without any compulsion on the part of my contemplated spouse, John Frederick Hinton".

In Hicks v Gazley, the chambers judge found that an agreement drafted by counsel for the husband and signed by the wife three months before their final separation was compliant with the requirements of s. 38 of the Family Property Act and that statutory non-compliance was not, therefore, a bar to the enforcement of that agreement. The husband had not provided full financial disclosure before the agreement was signed. The wife only signed the agreement after receiving verbal and later written advice from a lawyer that the agreement did not meet the requirements of the Family Property Act and was therefore not enforceable. When she signed the agreement, the wife also signed a written acknowledgement that she was aware of the nature and effect of the agreement, that she intended to give up possible future claims to property she might have under the FPA and that she was executing the agreement freely and voluntarily without any compulsion from the husband. The chambers judge concluded the agreement was not unenforceable for failure to meet the requirements of the FPA because it fell within the definition of agreement as found in s. 37 and 38 of that statute, because the written acknowledgement given by the wife met the requirements of s. 38, and because that legislation does not impose requirements of full financial disclosure, independent legal advice or correct legal advice as prerequisites to enforceability.

Law

Section 37 of the Matrimonial Property Act, RSA 2000, c M-8 provides:

Agreements between spouses

37(1) Part 1 does not apply to property that is owned by either or both spouses or that may be acquired by either or both of them, if, in respect of that property, the spouses have entered into a subsisting written agreement with each other that is enforceable under section 38 and that provides for the status, ownership and division of that property.
(2)
An agreement under subsection (1) may be entered into by 2 persons in contemplation of their marriage to each other but is unenforceable until after the marriage.
(3)
An agreement under subsection (1)

(a) may provide for the distribution of property between the spouses at any time including, but not limited to, the time of separation of the spouses or the dissolution of the marriage, and
(b) may apply to property owned by both spouses and by each of them at or after the time the agreement is made.

(4)
An agreement under subsection (1) is unenforceable by a spouse if that spouse, at the time the agreement was made, knew or had reason to believe that the marriage was void.

Section 38 of the Matrimonial Property Act, RSA 2000, c M-8 sets out the formal requirements for agreements as follows:

Formal requirements for agreement

38(1) An agreement referred to in section 37 is enforceable if each spouse or each person, in the case of persons referred to in section 37(2), has acknowledged, in writing, apart from the other spouse or person

(a) that the spouse or person is aware of the nature and the effect of the agreement,
(b) that the spouse or person is aware of the possible future claims to property the spouse or person may have under this Act and that the spouse or person intends to give up these claims to the extent necessary to give effect to the agreement, and
(c) that the spouse or person is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse or person.

(2)
The acknowledgement referred to in subsection (1) shall be made before a lawyer other than the lawyer acting for the other spouse or person or before whom the acknowledgement is made by the other spouse or person.

In McAulay v McAulay, 2021 ABQB 381 (CanLII), following the parties' separation the parties negotiated a Divorce and Property Agreement (the “Agreement”). The Agreement was a comprehensive division of matrimonial property, inter alia. Kubik J. held that the person challenging the validity of the agreement bears the burden of proof, on a balance of probability, to demonstrate that the Agreement is void as a consequence of duress, unconscionability, lack of disclosure, or failure to meet the requirements of s. 38 of the Matrimonial Property Act:

[31] Cindy challenges the validity of the Agreement. She bears the burden of proof, on a balance of probability, to demonstrate that the Agreement is void as a consequence of duress, unconscionability, lack of disclosure, or failure to meet the requirements of s. 38 of the MPA and the Family Property Act, RSA 2000, c F-4.7 (FPA).

Kubik J. held that contractual relationships reduced to writing and freely entered into by parties should not be readily interfered with. The law of contract presumes that adult parties in positions of equal bargaining power, with full disclosure, and the advantage of independent legal advice should be able to organize their affairs and resolve their disputes in the manner they see fit. This principle is codified in the provisions of the MPA and the FPA, specifically sections 37 and 38 of each Act:

[33] Contractual relationships reduced to writing and freely entered into by parties should not be readily interfered with. The law of contract presumes that adult parties in positions of equal bargaining power, with full disclosure, and the advantage of independent legal advice should be able to organize their affairs and resolve their disputes in the manner they see fit.

[34] This principle is codified in the provisions of the MPA and the FPA, specifically sections 37 and 38 of each Act.

[35] Those provisions state that the legislative presumption of equal division of matrimonial or family property does not apply when the parties have entered into a written agreement, enforceable under section 38, that provides for the status, ownership, and division of that property. Such agreements may be entered into both before and after marriage (or cohabitation) and can provide for the distribution of property owned by the parties at (or after) the time the agreement is made, including, but not limited to the time of separation. This clearly contemplates pre- and post-nuptial agreements, and does not foreclose the parties making provision for the effects of reconciliation.

[36] Further, the MPA and FPA set forth the execution requirements to ensure enforceability. Section 38 requires that an agreement be executed by the parties in writing, apart from each other, and that the parties acknowledge that they are aware of the nature and effect of the agreement, that they are aware of the possible future claims they may have, and are giving up those claims to the extent necessary to give effect to the agreement, and that the party is executing the agreement freely, voluntary, and without compulsion of the other party. Each spouse must make these acknowledgements before separate lawyers.

[37] The codification of the execution requirements ensures knowledge, fairness, and voluntariness in contracting.

Kubik J. held that the evidence did not support that the Agreement was signed under duress. The economic pressure arising from the separation was not sufficient to undermine the agreement:

[38] In this case, the formal requirements of s. 38 were followed. While the parties had negotiated the general terms of the Agreement, Connor’s lawyer drafted the Agreement. Cindy had disclosure, and it was clearly brought to and discussed during her appointments with her first lawyer. Further, she had knowledge of the family finances as she was responsible, prior to the separation, for managing the parties day-to-day finances. She looked after the bookkeeping, bank accounts, and bill payments. The Agreement itself disclosed assets and debts. The distribution of those assets and debts to each party were itemized in separate schedules attached to the Agreement. Each of the parties signed the sworn declaration that the contents of those documents were true and formed part of the Agreement. Each of the parties signed the MPA acknowledgements before independent counsel.

[39] As noted in Tardif v Campbell, 2008 ABQB 766, to prove that an agreement is executed under duress, a plaintiff must demonstrate that the pressure was so great as to deprive him of the ability to exercise independent judgment. It is generally recognized that parties to settlement negotiations face a certain degree of economic pressure and may be in discrepant bargaining positions. Absent unconscionability or duress, economic pressure, not created by the actions of the opposing party, should not undermine the agreement: Hearn v Hearn, 2004 ABQB 75 (CanLII), [2004] AJ No 105.

[40] The evidence does not support that the Agreement was signed under duress. The parties negotiated the general terms of the Agreement before engaging lawyers. It is also clear that Cindy received legal advice about the sufficiency of the support arrangements from the first lawyer she consulted. In the absence of evidence from the second lawyer, I have to presume, given his execution of the acknowledgments and certificates, that he fulfilled his obligations to ensure that the Agreement was being executed freely and voluntarily, without compulsion or duress.

[41] While Cindy testified that she was under financial duress at the time of signing the Agreement, the evidence shows that she was receiving $3,000 per month in spousal support which commenced on July 1, 2012, and that immediately following the separation she cashed in a $15,000 RRSP. There were no words or deeds on Connor’s part, which made continuing support or equal division of the property contingent on signing the Agreement. While Cindy faced financial pressure, that pressure arose from her choice to pay off a $4,000 debt owed by the couple’s son, which left her in a shortfall position for a period of time. This circumstance was not of Connor’s making.

Kubik J. held that there was no evidence to support that the Agreement was unconscionable:

[42] While a lower standard for unconscionability may apply in family law proceedings (Miglin v Miglin, 2003 SCC 24 at para 82 [Miglin]), proof of unconscionability requires evidence of an inequality in bargaining positions and an improvident bargain: Norberg v Wynrib, 1992 CanLII 65 (SCC), [1992] 2 RCS 226.

[43] In this case, there is no evidence to support that the Agreement was unconscionable. As previously stated, the parties negotiated the general terms of the Agreement, shared disclosure and had the advantage of legal advice. The net matrimonial property was shared equally and the support being paid at the date of separation reflected 50% of Connor’s net income. While, arguably, the duration of support was only 3 years in the face of a 15-year marriage, at the time of the separation Cindy was in school pursuing a graphic design diploma, and the Agreement contemplated her economic self-sufficiency by July 2015. In addition, she and her first lawyer discussed the fact that the contemplated spousal support was less than she may have been entitled to, and she executed the Agreement in the face of that knowledge. As noted by the Supreme Court of Canada in Hartshorne v Hartshorne, 2004 SCC 22, a party cannot avoid his or her contractual obligations on the basis that he or she believed that the contract was void or unenforceable from its formation.

In Tardif v. Campbell, 2008 ABQB 776 (CanLII), the Alberta Court of Queen's Bench held that to prove that an agreement is executed under duress, a plaintiff must demonstrate that the pressure was so great as to deprive him of the ability to exercise independent judgment:

[31] The Plaintiff asserts that he signed the Agreement on September 21 in an atmosphere of stress over his wedding set for September 23. He testified that because of this stressful environment, he signed the Agreement fearful that the wedding would not take place.

[32] A similar claim arose in Engle v. Carswell, 1995 CanLII 16134 (NWT SC), [1995] 5 W.W.R. 301 (N.W.T.S.C.), a decision of Miller J., sitting in the Supreme Court of the Northwest Territories but also a Justice of Alberta's Court of Queen's Bench. In that case, a wife who signed a prenuptial agreement later alleged that she was under such pressure from the husband that it should be nullified. The husband had made it very clear that the Marriage Agreement was a prerequisite to the marriage. The question was whether the wife could "exercise independent judgement" despite finding herself in that situation. The wife discussed the agreement with her lawyer and went on to sign it against the lawyer's advice after some changes were made which met her major concerns. The Court upheld the agreement because of her ability to “exercise independent judgement.”

[33] To prove that he executed the Agreement under duress, the Plaintiff must demonstrate that he was under such pressure that he no longer had an ability to exercise independent judgement.

[34] The Plaintiff said that he felt pressured because of the short period of time between the day he signed the Agreement and the wedding itself. He felt that the Agreement was sprung on him. He agreed that while many things were going on at the time to prepare for the great day, at no time did the Defendant say or intimate to him that if he failed to sign the Agreement there would be no marriage. The Defendant’s father admitted in cross examination in these proceedings that he personally felt that there should not be a marriage unless the Agreement was signed. I accept his evidence that nothing was said about this to the Plaintiff and that no one put any pressure on him to sign the Agreement.

[35] I am not satisfied that the Plaintiff was under such pressure that it amounted to duress or that he was not able to exercise independent judgement. It is also notable that the Plaintiff directed his lawyer to make an addendum to clause10 of the Agreement. While he claimed no memory of that event, I accept the lawyer’s evidence that the addendum would have been made either with the client’s direction or at least his concurrence.

In P.D.B. v. J.A.B., 2010 ABQB 286 (CanLII), the parties separated after 19 years of marriage and entered into a separation agreement (the "Agreement)`. The Agreement was negotiated without the retained assistance of legal counsel. After execution, both parties attended upon counsel to execute a Matrimonial Property Act Acknowledgement (“Acknowledgment”) Section 38 certificate and obtained certificates of Independent Legal Advice from members of the Law Society of Alberta. The husband argued that the Agreement was not enforceable on the grounds that he did not fully understand the nature of the Agreement and that he did not receive adequate or independent legal advice from Mr. Peterson. The husband executed a certificate pursuant to s. 38 of the Matrimonial Property Act acknowledging that he was executing the Agreement separate and apart from his wife, that he was aware of the nature and effect of the Agreement, that he was aware of his possible claims under the Act and that he executed the Agreement freely and voluntarily. That is to say he acknowledged all the essentials necessary to enforceable make the Agreement.:

[40] On the evidence before me in this case it is clear Mr. executed a certificate pursuant to section 38 of the Act acknowledging that he was executing the Agreement separate and apart from his wife, that he was aware of the nature and effect of the Agreement, that he was aware of his possible claims under the Act and that he executed the Agreement freely and voluntarily. That is to say he acknowledged all the essentials necessary to enforceable make the Agreement.

Sullivan J. held with respect to the matrimonial property the requisite statutory formalities of ss. 37 and 38 were met. The Agreement was entered into voluntarily and freely and it related to the intentions of the parties and met the needs of both Mr. and Ms. and the demands of the legislation:

[42] In spite of this finding, I find that with respect to the matrimonial property the requisite statutory formalities of ss. 37 and 38 have been met. I am satisfied that the agreement was entered into voluntarily and freely and it related to the intentions of the parties and met the needs of both Mr. and Ms. and the demands of the legislation.

In Diegel v. Diegel, 2008 ABCA 389 (CanLII), the Alberta Court of Appeal held that if matrimonial property is to be divided by agreement rather than y a Court through the processes set out in Part 1 of our Act, such an agreement is to be accomplished by parties who have reasonable bargaining power and understanding of their legal rights. Accordingly, s. 38 sets out essential acknowledgments by the spouses which are necessary to make enforceable agreements under s. 37 of the Act:

[33] We do not find it necessary or appropriate to expatiate at length here about the philosophy behind ss. 37 and 38 of the Act. Alberta’s legislative approach is not the same as the approach in Ontario: see, by comparison, LeVan v. LeVan (2008), 90 O.R. (3d) 1, [2008] O.J. No. 1905 (QL), 2008 ONCA 388, leave denied [2008] S.C.C.A. No. 331 (QL). Nonetheless, we observe that a common feature of such legislation appears to be in recognizing two alternative modes of disposing of matrimonial property, namely by court order, or by agreement. If matrimonial property is divided by agreement rather than by a Court through the processes set out in Part 1 of our Act, such an agreement is to be accomplished by parties who have reasonable bargaining power and understanding of their legal rights. Accordingly, s. 38 sets out essential acknowledgments by the spouses which are necessary to make enforceable agreements under s. 37 of the Act.

In Mayowski v. Mayowski, 2011 ABQB 31 (CanLII), the Court held that the Matrimonial Property Act allows parties on the breakdown of marriage to make consensual agreements opting out of the protections set out in the Act. However, in order to do so, both parties must conform with the strict requirements found in sections 37 and 38:

[21] The Matrimonial Property Act allows parties on the breakdown of a marriage to make consensual agreements opting out of the protections set out in the Act. However, in order to do so, both parties must conform with the strict requirements found in sections 37 and 38 of the Matrimonial Property Act: [...]

In Hinton v. Hinton, 2008 ABQB 189 (CanLII), the plaintiff sought distribution of matrimonial property contrary to the terms of a prenuptial agreement signed before her marriage to the Defendant in 1997. She claimed the Agreement should not be binding on her because of a lack of proper independent legal advice, inadequate disclosure, undue influence and duress. Macklin J. held that, to give practical effect to s. 38 of the Matrimonial Property Act, each spouse should be able to rely on the Acknowledgement signed by the other at face value. In light of the Plaintiff’s signed Acknowledgement, the Plaintiff cannot claim now that she did not receive independent legal advice:

Did the Plaintiff receive independent legal advice from Mr. Hautmann?

[23] Mr. Hautmann testified. He has been a lawyer for over 24 years and a significant part of his practice is, and has been, in the area of Family Law. While he is acquainted with the Defendant, it is only through the legal profession. He is not socially acquainted with him. He has notarized and commissioned documents for the Defendant and has received an occasional referral of work from him. I accept his evidence and believe he was in a position to provide proper independent legal advice to the Plaintiff. I reject her suggestion that Mr. Hautmann had a relationship with the Defendant that would impinge on his ability to provide independent advice.

[24] The Plaintiff testified that Mr. Hautmann spent only 15 minutes with her. I do not believe her. Mr. Hautmann testified that he gave advice to the Plaintiff alone and spent at least 45 minutes with her. While he acknowledged that he may not have seen the draft Agreement before the day it was signed, he said he read it and made sure that he understood it before he went through it with the Plaintiff. He did acknowledge that he found the form and content of the agreement to be somewhat verbose, but that he had a good solid understanding of the agreement when he met with the Plaintiff and there were no parts of it that were unclear or ambiguous to him.

[25] Mr. Hautmann went through the Agreement with the Plaintiff, summarized those paragraphs that were important to her rights and advised her as to how she would be affected by those clauses. He asked her on at least two occasions whether she understood and could abide by the terms of the Agreement and she confirmed to him that she was prepared to do so. He testified that he also pointed out clauses to her that were not favourable to her.

[26] In her signed Acknowledgement, the Plaintiff confirmed that she was “aware of the provisions, nature and effect” of the Agreement and was “aware of the possible future claims to property” that she may have under the Matrimonial Property Act and that she intended “to waive and give up these claims to the extent necessary to give effect to the within Agreement.”

[27] The wording of the Acknowledgment mirrors the formal requirements set out in s. 38 of the MPA. The requirements set out in s. 38 are intended to ensure the validity and effectiveness of an agreement contemplated by s. 37. To give practical effect to s. 38, each spouse should be able to rely on the Acknowledgement signed by the other at face value (Hearn v. Hearn (2004), 2004 ABQB 75 (CanLII), 16 R.F.L. (6th) 87 (Alta.Q.B.) at para. 58). In light of the Plaintiff’s signed Acknowledgement, verbal confirmation of which she also gave to Mr. Hautmann, how can she now say that she did not receive independent legal advice? In short, she can’t. I find that the advice was truly independent.

Macklin J. also held that the alleged non-disclosure by the Defendant was immaterial and would not be such to constitute a breach of the Agreement, nor to render it unenforceable under s. 38 of the Matrimonial Property Act:

[28] The Plaintiff argues that there was no full disclosure of assets by the Defendant so she could not make an informed decision whether to sign the Agreement. There was no schedule of assets of either party appended to the Agreement. She submits that the only assets of which she was aware were the house at [...] - 141 Street and the chattels contained therein, but that otherwise it appeared he had little in the way of means or assets.

[29] Section 38 of the MPA does not speak directly to disclosure, except to the extent that the same may impact on an awareness of the nature and the effect of the agreement, or possible future claims to property and the intention to give up these claims to the extent necessary to give effect to the agreement.

[30] The Agreement itself addresses disclosure in the preamble on p. 3:
AND WHEREAS there has been a disclosure of financial, property, asset and prospects information concerning the prospects, assets, liabilities and financial circumstances of each party to the extent that each party is fully advised and informed of the property, estate and prospects of the other and each party has been advised and informed of the assets, liabilities, estate and prospects of the other...and no further information is desired by either party prior to executing this Agreement and whereas the parties have directed their respective solicitors that they are to take no further steps to ascertain or obtain any more information or to compel any further disclosure of such information...

[31] Clause 15.7 also deals with disclosure:
15.7 Each party agrees that there has been a disclosure of financial information concerning the assets, liabilities and financial circumstances of each party to the satisfaction of each party and that no further information is desired by either party prior to executing this Agreement and the parties have each directed their respective solicitors that they are to take no further steps to ascertain or obtain any more information or to compel any further disclosure of such information.

[32] Finally, Clause 15.12 provides:
15.12 The wife acknowledges that she is fully acquainted with the business, skills, assets, resources health, prospects and liabilities of the husband; she understands that the husband is obliged with regards to informal family trusts; she acknowledges that the husband has answered to her satisfaction all questions she has asked about the husband’s business, skills, assets, resources health, prospects and liabilities...she understands that by entering into this Agreement she will receive substantially less than the amount she might otherwise be entitled to according to the
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