Home Spousal Support An Affair to Remember (But Never Discuss)

An Affair to Remember (But Never Discuss)


Blonde bombshell Michaele Salahi just had a bombshell dropped on her when she was served with husband Tareq Salahi’s divorce papers in Virginia. The Salahis are reality TV stars best remembered for crashing a White House state dinner in 2009 honouring India’s prime minister.

Mr. Salahi is claiming that his soon to be ex-wife had an extra-marital affair with Neal Schon – the lead guitarist for Journey. Perhaps Mr. Schon can encourage the band to remix their most infamous track and change the chorus to “don’t start believing.”

This isn’t the first time, and it certainly won’t be the last, that a marriage is riddled with infidelity. The twist here is that in the state of Virginia, adultery is a crime. It is only a misdemeanour punishable by a maximum $250 fine, but it is a crime no less.

In her court documents, Ms. Salahi has elected to “plead the 5th” in this regard and she is refusing to comment on the alleged adultery. According to TMZ.com, this is likely because the pre-nuptial agreement in place between the couple states that if it is proven that Ms. Salahi committed adultery then she loses all entitlement to spousal support.

Interestingly, Ms. Salahi and Mr. Schon are dating openly, and have been doing so for over four months according to TMZ.com. The question now is: when did they start their affair?

Insofar as the law of Ontario is concerned, can a clause erasing someone’s entitlement to spousal support as a result of adulterous behaviour be built into a separation agreement or marriage contract?

Section 52 of the Family Law Act reads as follows:

Marriage contracts

52. (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

  1. ownership in or division of property;
  2. support obligations;
  3. 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
  4. any other matter in the settlement of their affairs.

A simple reading of this section on marriage contracts would suggest that the clause regarding infidelity found in the agreement between the Salahis would be enforceable in a marriage contract drafted and executed in Ontario by two Canadian residents. Not so fast!

Section 56(2) is an exception to the above, which reads as follows:

Provisions that may be set aside or disregarded
Clauses requiring chastity

(2) A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

To my knowledge, no such law exists in Virginia, so Mr. Salahi may successfully protect himself from any spousal support obligation. Too bad for Ms. Salahi that they don’t live in Ontario.

I’m curious to know what you think. Is Section 56(2) of the Family Law Act reasonable? Or do you believe couples should have the right to draft clauses related to remaining faithful to their spouses?

Andrew Feldstein The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with 9 lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past ten years (2007 to 2016 inclusive). Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.