Will and Kate: The Wedding of the Century accompanied by a pre-nup?
With the Royal Wedding having just taken place, it is easy for many to be reminded of the Royal Wedding that captured the public's attention almost 30 years ago; the wedding of Charles and Diana. Unfortunately, their fairytale ended in Divorce 15 years later with a reported lump sum payment to Diana of $17 million pounds and $350,000 pounds per year to run her office as Diana, Princess of Wales. The couple also agreed upon joint custody of their children William and Harry. While this may seem like a good resolution to their matrimonial dispute, some may question if Diana should have received more in light of the fact that she was married to the future King of England, and others may question if she should have received so much.
The fact of the matter is that Charles and Diana did not sign what is known as a pre-nuptial agreement prior to their marriage. There is also no official reports as to whether William and Catherine have signed one or not. When considering William's wealth going into the marriage, many may question whether this is a good idea in the unfortunate event that William and Kate decide to divorce in the future.
If William and Kate were married in Canada and they decided to sign a "pre-nup," they would be signing what is known in here as a Marriage Contract. Pursuant to s. 52 of the Family Law Act, two people who are married or intend to get married can enter into a contract in which they agree on their respective rights and obligations under the marriage or on separation or on death. The contract can deal with issues such as:
- ownership in and division of property;
- support obligations;
- the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
- any other matter in the settlement of their affairs.
With respect to William and Kate, they can agree to how they will divide their property if they were to divorce in the future, which party would owe support to the other, and any other matter which they feel would make it easier for them to come to a resolution if they were to separate.
What William and Kate would not be allowed to agree upon is who would have custody of and access to these children in the event of a divorce. They would also not be allowed to agree in their marriage contract to limit either of their rights to the Matrimonial Home, which has not yet been reported where the couple will live. If there was a clause put into the contract limiting either of their possessory rights to the home, it would be unenforceable.
Looking to the future, if the couple decides to separate, either William or Kate would be able to apply to the court to have the contract set aside for one of the following reasons:
- a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
- a party did not understand the nature or consequences of the contract; or
- for general reasons such as undue influence, duress, mistake, etc.
In the event that the agreement is set aside in the future, this matter would be dealt with by the Court as if there was never a marriage contract in place.
Often when parties have marriage contracts in place and they attempt to have them set aside, they may argue that specific clauses were not clear enough or they did not understand their consequences when signing the contract. In these situations, the Court must look for an interpretation that is in accordance with the parties' intention at the time the contract was signed. If there is an interpretation that would produce a result that the parties would not have reasonably expected at the time they entered into the contract, then that interpretation should be rejected.
For William and Kate, if they were to decide to sign a marriage contract, the more clear and specific they can make their contract, the better it will be in the future should they separate. Visit our website for further information on marriage contracts.