Online Legal Forms -- Click Here

Can spouses sign a contract that penalizes adultery?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the California case of Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494 (Ct. App. 2002), a couple signed an agreement after the husband had an extramarital affair. The agreement banned each spouse from engaging in extramarital sexual conduct and, specifically, stated that one spouses infidelity could cause the other spouse serious emotional, physical and financial injury. The agreement included a clause that stated that the spouse who committed adultery was required to pay to the other spouse $50,000 in liquidated damages irrespective of any other property settlement resulting from a divorce proceeding.

When the husband committed adultery, the wife asked the court to enforce this clause. Both the trial court and the California appellate court found for the husband and ruled that the clause vi­olated state public policy. It held that the legislature had made a social policy based decision to change the grounds for divorce from a fault ba­sis to a marriage breakdown basis. Consequently, the court said, fault is generally not a relevant consideration in the legal process of divorce. Further, recovery in divorce cas­es is basically limited to half the community property, ap­propriate support and legal fees - with no premiums for emotional pain. The court said that the agreement here violated this policy by imposing such a premium for the emotional angst the husband’s infidelity had caused his wife. Moreover, the agreement contravened public policy by attempting to penalize one of the parties as a result of his conduct during the marriage… only in California.

Steven Benmor

About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.