In various famous divorce cases where was an existing pre-nuptial agreement such as Paul McCartney vs Heather Mills, Mel Gibson vs Oksana Grigorieva, Tiger Woods vs Elin Nordegren etc., the pre-nuptial agreement was put in place to define the division of assets if the couple divorces. You’d think that it would definitively address the monetary settlement issues if they determine they cannot live together, and yet in each case you have the wife getting an attorney and pressing for much, much more, and often (it seems) getting it.
What’s the point of these pre-nuptial agreements if they are so easily circumvented?
So the Heather Mills/Paul McCartney pre-nup was just to provide him with leverage in the eventuality of a court case, and to state outright what assets they were going into the marriage with.
Mel Gibson was never married to Oksana Grigorieva, so there was no pre-nup.
Tiger Woods and his wife had kids after they were married (Paul McCartney and Heather Mills’ daughter was also born after their marriage); if circumstances change in such a major way as having children, then it would be hard to say that a pre-nup couldn’t be challenged. In any case, Tiger Woods he can’t claim he didn’t cheat on his wife, so that might even have been in the pre-nup - I don’t know.
I think courts look at prenups the way they look at boiler plate language in many consumer contracts. These often attempt to nullify rights that a consumer has under common and/or statutory law. Therefore, courts will generally either construe them as narrowly as possible or ignore them altogether.
As to consumer contracts, there is such a disparity in bargaining power between the parties that the objectionable clauses are also considered a form of overreaching. This will also tempt courts to read them narrowly or ignore them.
I don’t know this for a fact, but my guess is that both of these issues play a role in determining whether a prenup will be enforced as written, be enforced with modifications, or thrown out completely.
I believe some courts have also interpreted pre-nups as being binding only in relation to pre-marital assets, not assets earned during the course of the marriage.
He doesn’t have a prenup with Robyn either. They were both young and poor when they married and she’s the last 30 yrs as a homemaker raising six children. She’ll most likely get half of everything.
I recall a case in the news about a couple of lawyers in Vancouver many years ago that is famous in legal precedent for prenups. The guy went into the marriage with substantial assets, and the woman with substantial debts. a day before the wedding, he sprang a pre-nup on her. After much hysterics, according to one witness, she signed t and said something to the effect that “the court would throw this out anyway”.
Apparently it had said something like: The family house (his before the marriage), she gained some percent every year until she earned her 50% about the 10th year of marriage; and the guy’s law partnership (his major asset) was exempt from any asset calculations for the 50-50 split.
Canada is very big on 50-50 splits. Even most assets brought into the marriage slowly become fair game for the split. However, in this case the judge said that (a) a knowledgable person (lawyer) willingly signing something cannot rely on the courts to second-guess their choices, and (b) the prenup was NOT “unconscionable” since it was moderately fair. A commentary I read about it said that if it had said something like “she never gets my house” it would have been considered unfair.
SO that is probably the key point- no matter what the prenup says, it has to be somewhat fair. If the guy is a billionaire and it says “she gets $10,000 a year” almost anyone would say that is not fair. If he’s a billionaire an she gets 5 million a year for life, or say a 20-million dollar cash settlement, we might see that as fair. It depends on the judge.
The issue of child support is different. In Canada, support is considered something the parent owes the child, not the ex. A parent cannot simply sign away such a right - the judge will bend over backward to ensure any agreement is VERY fair for the child.
The moral being - if you are a greedy dick about it, the prenup will be thrown out. However, if you know what you are signing (i.e. took 4 years of law school to understand the legal implications) then do NOT assume the judge will second-guess your conset.
And this is where it gets complicated. Imagine that Bob & Mary get married. Before the wedding, Bob owns a marginally successful construction company and they sign a prenup stating that Bob keeps it in the event of a divorce.
After they are married, Mary starts spending a few days a week at the company, cleans up the accounting, implements new business procedures, and eventually becomes a full-time employee. Possibly as a result of her efforts, the business grows to many times its original size and becomes highly profitable.
Then comes the divorce. Bob says, “My business. I keep it. See the prenup?” Mary says, “The business as it exists today is the result of my hard work. We’ve treated it as a shared asset for our whole marriage. I get half.”
Obviously, both positions are reasonable enough to take it to court.
I think in the case of Tiger Woods, she had the upper hand because he was desparate to keep the marriage. I’ve read somewhere that she renegotiated the prenup during the period between the marriage and the divorce.
[I don’t know if the above actually happened. But it’s also my understanding that he only enrolled in sex therapy because of his deperation to save the marriage, and that as part of the sex therapy he had to admit to all sorts of additional affairs. Which in turn both enraged Elin and gave her further ammunition in the divorce.]
This is the Canadian legal view, as I understand. Even if Mary did not work at the business, by taking care of the kids, by doing his laundry, by making his meals - she has helped him on the road to success. The longer the marriage, the more the business becomes a “family asset”.
Also, if Aunt Sally leaves you $100,000 and you invest it -inheritances are exempt. But if you use that money to pay down the family house, to pay bills, to buy a car for the whole family, etc - it slowly becomes family assets.
In fact, you don’t even have to be married. Just living together and assisting your SO with his business is enough to claim compensation under the doctrine of “unjust enrichment”.