Brangelina’ – ‘At least they have a pre nup! But what about the kids?’

The shock split of one of Hollywood’s most famous couples, Brad Pitt and Angelina Jolie, has certainly got everyone talking.  The couple have a combined net worth of almost $200 million and six children together.  With rumours of alleged infidelity and different parenting styles, the divorce certainly has the potential to be acrimonious, but what is the actual legal position?

Firstly it should be noted that Jolie has filed for divorce from Pitt in the state of California.  US divorce law and the enforceability of any premarital agreements (or pre-nuptial agreements) varies in different states and is different to the law in the UK.

It seems likely from the divorce documents filed by Jolie, that the couple did have a prenuptial agreement in place as reference is made within their  divorce documents to their being ‘additional separate property assets and obligations of the parties’.  Although the Hollywood rumour mill is suggesting that the couple’s prenuptial agreement may have contained infidelity clauses which, if breached, would lead to Jolie retaining sole custody of the children, such clauses would be unenforceable even if contained within the agreement.  California is a no-fault state and so you cannot base any kind of prenuptial agreement on somebody’s behaviour if you want the agreement to be enforceable.  Likewise even if arrangements for custody of the children are inserted within the agreement they would not be binding or enforceable.

What the prenuptial agreement will successfully deal with is the split of the couple’s substantial joint and individual wealth (in so far as they have covered it) following their divorce, but who has done what will not impact the way that those assets are to be dealt with it.   This will undoubtedly save the couple time, money and to a degree mudslinging compared with if they had not had a prenuptial agreement in place, and their lawyers had had to start at the beginning in dealing with who should get what.

In the UK although pre-nuptial agreements are still not officially binding, they are becoming increasingly persuasive when the Courts have been asked to decide a couple’s financial settlement in big money cases.  So long as a prenuptial agreement is fair, the parties have taken proper legal advice at the time of signing, are not under any undue pressure to enter into the agreement, and the terms provide sufficient provision for the family, the UK courts are becoming much more robust in upholding the terms of those agreements.

However, arrangements about who is going to care for the children following a divorce cannot be stipulated (or at least cannot be binding) in a prenuptial agreement either in California or in the UK.  This is of course (in my opinion) only right as who knows what the arrangements for the children should be at the time of the divorce or what ability there is for either parent at the time to meet those children’s needs.  However, this does mean of course that, if there is a disagreement between the parents at the time of the relationship breakdown as to who should care for the children (and where, and how often)  there is often the inevitable mudslinging and criticism of the other parent which leads to expensive and time consuming court applications having to be made; And with Jolie apparently filing for divorce based on Pitt’s parenting of the children, it seems that although their financial affairs may be sorted out quickly and privately, securing the future care arrangements for their children certainly has the potential be an expensive and time consuming legal battle for them ( and the tabloid readers).