Rumours about Brad Pitt and Angelina Jolie's relationship seem to change every time a new tabloid is printed. They can't seem to decide whether this celebrity couple is breaking up, getting back together or adopting another child.
One of the most recent rumours is that Pitt and Jolie have come to an agreement regarding their separation. Gossip websites report that they agreed to split their multi-million dollar estate and to share custody of their many children. Just a few days later, the paparazzi corrected this story. It turns out that the couple did see a family lawyer, but to get a pre-nup, not to split up.
Perhaps the writers of the original version of this story should have known it was inaccurate because the rumours stated that Bard and Angelina met with a divorce lawyer together. This simply does not make sense if their intention was to separate. Not only does it seem silly to meet with a divorce lawyer with your soon-to-be ex-spouse, it would mean that any agreement entered into with this lawyer would most likely be set aside.
One lawyer could not represent both parties in a separation because doing so would put that lawyer in a conflict of interest. This means that because spouses in a divorce case are opposing parties, they will most likely have opposing interests and a lawyer is put in a conflict when trying to represent these opposing interests. For example, one spouse may want the other to pay more spousal support, while the other spouse will not want to pay any spousal support. Lawyers have a duty to represent their client's best interests, and this cannot be done if their clients have opposing interests. So, if a lawyer were to represent both parties in a divorce case, they would have a conflict of interest and would have to withdraw or risk being sued by one of his former clients in a negligence claim.
Family lawyers have procedures in place to ensure that they do not inadvertently meet with both spouses, so they would certainly not meet with both on purpose.
The only exception to this rule is if the lawyer is hired as a mediator, not as a lawyer. Opposing parties, whether represented by counsel or not, can hire a mediator to help resolve their dispute. This mediator is not put in a conflict of interest when meeting with both parties because the mediator does not represent one party or the other. Instead, the mediator tries to help both parties reach an agreement together and directs them both to obtain independent legal advice prior to any agreement being entered into.
Now that we have the story straight, at least for now, we can explore what Ontario courts would likely make of Brad and Angelina's prenuptial agreement.
First of all, Ontario courts would not call it a pre-nup. In Ontario, such agreements are called Marriage Contracts (if the parties are married) or Cohabitation Agreements (if the parties are not married).
Secondly, Ontario courts would take issue with Brangelina's decision to split custody of the children. This is because Marriage Contracts and Separation Agreements cannot include agreements about custody or access of children. Why? Because custody and access are decided based on what is best for the children (or in legal terms, the Best Interest of the Child test, not what is best for the parents. This ensures that children are taken care of by the person or persons who are best able to do so, not by whomever the parties agreed would care for the children, in some cases before they are even born.
This does not mean that an Ontario court would not grant Pitt and Jolie joint custody of the children, it just means that this will be determined if/when they split up.