The world has turned on its axle, Brad and Angie have broken up. Amongst the daily plethora of stories about Brangelina has come the following in the Huffington Post – `Iron clad’ pre nup in place, leaving only the kids to fight about. You can read the article here
So how Iron Clad can a Pre-nuptial Agreement be?
Well, the answer in this country is a difficult one. When carefully drafted in accordance with the legislation, Pre-nuptial Agreements or Binding Financial Agreements as they are known here are strong documents.
They can be compromised however, by a number of factors including the failure of a couple to be honest in relation to holdings when the agreement is drafted, or where a couple over time co-mingle their assets and the boundaries become unclear. Entering into an Agreement on the eve of the wedding has capacity to compromise an Agreement in the long run. The introduction of children further has capacity to complicate the enforceability of an Agreement, and particularly if provision hasn’t been made for what to do if a break up takes place after kids arrive.
Much can also turn on the quality of the drafting of the Agreement and the independent legal advice received by both parties before signing up. Ultimately, the rule for us is that a pre-nuptial style Agreement is not worth pursuing if you’re unprepared to commit to a comprehensive process of negotiation and discovery and a thorough and well drafted Agreement. They are great `spirit and intent’ documents though. They can be very effective in alleviating the concerns of adult children in relation to a second marriage, and whilst a difficult conversation, they can be introduced on the basis that they will provide clarity and allow both parties to focus on living their life together rather than being distracted by the idea that one party is rendered vulnerable by the marriage or cohabitation (if pursuing only a de facto relationship). We often meet with a client who simply wants to talk through whether an Agreement is a good idea and if so, how to introduce it to their new partner. Anyone who has been through a different property settlement negotiation or Court proceeding will tell you that they wish there had been an Agreement in place to alleviate any prospect of that fight. They can be very healthy documents in preventing conflict.
It’s easy to forget in the midst of the tabloids that the, albeit crazy, world of six kids has been shaken to its core in the last week. Whilst they may be mini celebrities in their own right, they are kids at the end of the day who more than likely love both their Mum and their Dad and are really confused and worried about why the two most important adults in their life are angry at each other. We routinely encounter matters where children years after separation still say that if they could have one wish it would be that Mum and Dad were together and happy. Often their alternative wish is that if they have to be apart, they’d like Mum and Dad to be nice to each other. It’s easy to forget that celebrities are as human as we are, albeit much better looking in the case of Brad and Ange! I suspect that the trappings of celebrity make divorce no easier, and in fact potentially far more debilitating given the public exposure. Let’s hope for all concerned, that Brad and Ange can learn to be nice to each other moving forward.