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:
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.
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.
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.