Should I Include A “No-Cheating” Clause In My Prenup?

a person signing a prenup contract with two wedding rings on the table

Prenuptial agreements, or prenups, often conjure images of wealthy couples protecting their assets. Jessica Biel and Justin Timberlake, Nicole Kidman and Keith Urban, and Mark Zuckerberg and Priscilla Chan have made many headlines because of their prenups. 

A prenup goes beyond just financial security. One controversial addition to prenups is the “no-cheating” or infidelity clause. It lists specific consequences that a spouse will face if they commit adultery during the marriage. Whether you want to include this clause in your prenup or not depends on a number of factors and past experiences. 

What is a “No-Cheating” Clause?

A “no-cheating” clause outlines the consequences if a spouse is unfaithful. These consequences can range from financial penalties to loss of certain assets or properties. For example, if a spouse is caught cheating, they might lose rights to spousal support. The sole purpose of this clause is to deter infidelity and provide a sense of security to the faithful spouse.

From a legal point of view, you’ll receive mixed opinions. In some jurisdictions, these clauses are enforceable, while others deem it punitive and unenforceable. Canadian family courts show reluctance in accepting clauses that impose financial penalties for personal misconduct, such as infidelity. Instead, courts prefer to focus on fair and equitable distribution of assets and support.

a judge's gavel sits on top of a prenuptial agreement document on a desk

What are the Benefits of a “No-Cheating” Clause? 

1. Emotional Security

It signals a commitment to fidelity and can strengthen trust between partners.

2. Financial Protection

In cases where infidelity leads to divorce, the faithful spouse may receive financial compensation. If one spouse has a history of infidelity, it will help to mitigate the emotional and financial turmoil often associated with it.

3. Clarity and Transparency

It can open up discussions about expectations and boundaries in marriage. It is a good way to test compatibility before signing the marriage papers. 

4. Deterrence

The clause is a powerful reminder of the commitment they’ve made to each other. 

What are Your Challenges and Considerations? 

Not all jurisdictions enforce “no-cheating” clauses. Courts may view them as punitive and contrary to public policy. Research how your provincial government handles it. Another challenge is proving infidelity as it can be difficult to conduct research and can further strain the relationship. 

Your spouse-to-be might take it as an element of mistrust and also believe that love and relationships should not be skewed with legal matters. Whether you choose to add this clause in your prenup or not, consult a family lawyer in Brampton to understand its pros and cons to your unique situation.

Are There Any Alternatives to the “No Cheating” Clause?  

While there’s no clause that works as an alternative, there are a few ways you can safeguard both spouses’ interests. Some that we recommend include:

  • Set clear financial terms that protect both parties, regardless of infidelity
  • Include mediation or counseling requirements if disputes arise 
  • Focus on building a well-rounded prenup that addresses financial and personal concerns and meets your provincial or federal government’s policies

Start your marriage right. Book a free prenup consultation with Sterling Law today. Our lawyers will provide clear, personalized advice and ensure your assets are protected.

Leave a Comment

Your email address will not be published. Required fields are marked *