The Arrangement: Revisiting the Tom Cruise and Katie Holmes' Prenup

Remember back in 2012 when the Tom Cruise and Katie Holmes divorce was trending all across the net? Apparently, Hollywood does.

Vanity Fair recently reported that E! has ordered a television series that may be based on the strange and raucous rumours which surrounded the Cruise and Holmes marriage.

The premise of the series, aptly named "The Arrangement", supposedly covers the alleged audition Holmes went through to be chosen as Cruise's bride and the prenuptial agreement she was purportedly required to sign.

The rumours about the Cruise and Holmes' contract were out of this world given the Cruise's prominent role in the Church of Scientology. Tabloids and gossip rags alike claimed that the contract purported to restrict various aspects of Holmes' life such as her spending habits, wardrobe, monetary compensation based on the number of children she has, and even requiring her to stay married to Cruise for a certain period of time.

If these alleged and outrageous provisions were true, would such a prenuptial agreement be legally enforceable in Ontario?

Thank your lucky stars; the answer is a definitive no. While Cruise and Holmes can technically make a contract that includes ridiculous rumored provisions, no Ontario court would be willing to enforce such provisions in a prenuptial agreement. Those provisions would likely be ignored or struck out by a court.

In Ontario, prenuptial agreements (a.k.a. marriage contracts) are a form of domestic contract governed by Section 52 of the Family Law Act (FLA). This section permits married spouses, or people intending to marry each other, to enter into a contract that deals with their rights and obligations upon the termination of the marriage, including:

  1. Ownership in or division of property;
  2. Support obligations;
  3. The right to direct the education and moral training of their children, but not the right to custody or access to their children; and
  4. Any other matter in the settlement of their affairs.

The FLA also limits some of the issues a marriage contract can address.

For example, a marriage contract cannot impose limits on a spouse's rights related to the matrimonial home as set out in the FLA. One such right is the right to equal possession of the matrimonial home regardless of who is on title to the property. What this means is that, if there were any contractual provisions disentitling Holmes from remaining in the couple's matrimonial home when they broke up, Cruise would have no legal leg to stand on in an Ontario court to force Holmes out of the home until the divorce was finalized.

A marriage contract also cannot determine post-separation child custody, access, or child support arrangements. So if Cruise and Holmes' prenuptial agreement dictated that after separation, Holmes would not be able to see her children again, Holmes could apply to the court to have that provision struck from the agreement. But if the agreement stated that their children would be raised in the Scientology faith, that provision could be enforceable as it is related to the education and mortal training of children. However, the courts still retain discretion to disregard such clauses if it would be in the children's best interests to do so.

Furthermore, any provisions relating to Holmes' post-separation rights that require her to remain chaste are void under Ontario law. Section 56(2) of the FLA, prohibits provisions in a marriage contract from making any post-separation right of a party be dependent on that party's chastity.

The FLA also provides judges the discretion to set aside a marriage contract or declare provisions of the contract invalid in certain circumstances. According to section 56(4) of the FLA, a court can set aside a marriage contract or a provision in it if:

  1. One side did not disclose significant assets, debts, or other liabilities when the contract was entered into;
  2. One spouse did not understand the nature or consequences of the contract; or
  3. There was any fraud, duress, or undue influence that resulted in a spouse entering into the contract.

Whether an Ontario court would have set aside the Holmes-Cruise prenuptial agreement is entirely up in the air given the secrecy and speculation regarding its possible provisions. However, if Holmes entered into the contract after having received independent legal advice, a court is less likely to set aside any otherwise valid provisions related to her property and support rights post-separation.

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