American pop star
Christina María Aguilera announced filing for divorce with her music producing husband
Jordan Bratman earlier this week. Aguilera and Bratman have a two year old son named
Max for whom Aguilera seeks joint physical and legal custody. Further,
while Aguilera and Bratman have entered into a prenuptial agreement that
protects “Earnings and accumulations of [Aguilera] before marriage,
during marriage and from and after the date of separation” from
division upon the dissolution of the marriage, Aguilera also seeks a full
and final waiver of a claim for
spousal support from Bratman.
The breakdown of Aguilera’s marriage gives rise to some interesting
issues that must be dealt with by the Family Court. Some of the more glaring
issues include custody, the repercussions of the domestic contract and
the effect of waiving spousal support. In what follows, each one of these
issues will be independently addressed in accordance to the Family Law
of Ontario:
Custody
Aguilera seeks joint custody of her son Max. In Ontario, parents who have
joint custody of their children both participate in making important decisions
regarding their welfare. The children may spend half their time with one
parent and the other half with the other parent or they may spend more
time with one than the other. Joint custody does not mandate that the
parents share equal parenting time. Instead, it simply provides both parents
with the authority to make significant decisions regarding their children
such as decisions regarding education, religion and medical treatment.
In order for joint custody be successful, the parents have to be able to
communicate with each other and to co-operate even though they are not
living together. In this case, this parenting arrangement seems feasible
as Aguilera and Bratman have separated on amicable terms and both desire
to play an active role in the parenting of their child.
Domestic Contracts
Under the
Family Law Act in Ontario, parties may enter a marriage contract to outline their expectations
and obligations both during and after marriage. In this domestic contract,
the parties may list the property that they are bringing into the marriage,
state its worth and even decide on entitlement to the property upon the
dissolution of the relationship. There are, however, certain things that
cannot be included in the marriage contract. Parties are not entitled
to make decisions as to custody and access upon the breakdown of the marriage,
nor can the parties breach the law which entitles both the husband and
wife an equal right to live in their home.
In this case, assuming that the marriage contract was duly executed, both
parties exchanged full financial disclosure and both parties were in receipt
of independent legal advice upon executing the contract it is unlikely
that the terms or its validity of the contract will be raised.
Spousal Support
Under the federal
Divorce Act, a Canadian family court will look at four heads when determining whether
to order spousal support and how much to order. These four are
- to recognize any economic advantages or disadvantages to the spouses arising
from the marriage or its breakdown; - to apportion between the spouses any financial consequences arising from
the care of any child of the marriage over and above the obligation apportioned
between the spouses; - to relieve any economic hardship of the spouses arising from the breakdown
of the marriage; and - in so far as practicable, to promote the economic self-sufficiency of each
spouse within a reasonable period of time. If a spouse is unable to support
him or herself or if there is a big difference between the incomes of
each spouse, he or she may have a claim for support against the other spouse.
The right to spousal support may be waived by way of an agreement. However,
in order to be a full and final release, the clause in the agreement must
be carefully worded and it must be clear that no change in circumstances
will warrant a review of spousal support obligations. In some cases, a
party’s waiver of spousal support is contingent on the potential payor’s
undertaking to provide ongoing financial disclosure. That is, if ever
the potential payor is found to be in a financial position to afford spousal
support payments, the support obligation will commence. The latter is
not an absolute release from the duty to provide support and as such,
legal advice should be sought in order to ensure that the party’s
agreement clears the potential payor from any future claim.
In this case, since there is likely to be some disparity in the incomes
of both parties, if Bratman can show that his weaker financial position
was caused by his marriage to Aguilera, he will certainly be entitled
to support, a right he may or may not wish to waive.
In all, it appears that Bratman and Aguilera have planned for a clean break
from one another and have decided to focus their attention on raising
their young son as opposed to becoming involved in a drawn out legal battle
over their separation.