Reportedly, the Wayne's World actress, Tia Carrere has filed for divorce from her photojournalist husband Simon Wakelin. The couple was married for seven years. They have one child together, age 4. The actress intends on being self-represented and the couple is said to have a prenuptial agreement.
If Carrere was divorcing in Ontario, the following considerations are relevant:
Lawyer's Ethical Obligations
If Wakelin retained counsel for his matrimonial matter, Wakelin's counsel has a professional legal obligation to ensure that
- Carrere who is unrepresented understands that Wakelin's lawyer is acting exclusively in Wakelin's interests;
- Wakelin's lawyer should recommend Carrere to obtain independent legal representation; and
- Wakelin's counsel is to take care to see that Carrere is not proceeding under the impression that her interests will be protected by Wakelin's lawyer.
When one party is represented and the other is unrepresented (with no question of capacity), the lawyer has to directly correspond with the unrepresented. If Wakelin has legal representation, his lawyer would be obligated to directly deal with Carrere. This means all correspondences; negotiations; court pleadings, etc... would be addressed to Carrere.
Conversely, if both parties retain counsel, the lawyers on each side have an ethical obligation to ensure that the lawyers directly communicate with each other in resolving the matrimonial matter. This means that opposing counsel is prohibited from communicating directly with opposing party. The only exception to this ethical rule is if the lawyer on one side provides consent to the other lawyer to permit direct communication between opposing party and opposing counsel.
There are three types of domestic contracts in Ontario:
- Separation Agreement – which is used by common law or married couples upon the breakdown of the marriage or relationship.
- Marriage Contract - which is known as a prenuptial agreement in the US. This contract is entered into between parties prior to marriage or during marriage in order to deal with the rights and obligations of the parties during marriage and/or martial breakdown.
- Cohabitation Agreement - which is equivalent to a marriage contract, but it applies to common law couples. Learn more about Cohabitation Agreements here.
Carrere and Wakelin are said to have a marriage contract (prenuptial agreement) in place which may assist the parties in their division of property, and support obligations, if any. However, Carrere and Wakelin's marriage contract cannot deal with issues of custody and access of their 4 year old child because custody and access issues are determined based on the best interests of the child and not contractually negotiable. However, it is possible that one of the parties may apply to the court to set aside the marriage contract. If this claim was successful, then all of the issues would be before the court as if there was no marriage contract.