"Brangelina": Ironclad Prenuptial Agreement?

According to TMZ, it's unlikely that Brangelina will be battling it out over financial or property issues because the couple had a short-term marriage of just two years and an "ironclad" prenuptial agreement that spells out exactly who gets what.

The couple reportedly have a combined fortune of $400 million and a total of 12 properties, 7 of which belong to Brad, 2 to Angelina, and 3 that they purchased together before they were married in 2014. It's not clear how the couple split the payments for the properties that they acquired while together but the prenuptial agreement apparently simplifies the couple's financial matters.

In Ontario, prenuptial agreements are more commonly referred to as marriage contracts or domestic contracts. Typically, marriage contacts are entered into prior to marriage and set out a couple's post-divorce rights with respect to property and finances. The problem is that even 'ironclad' agreements can be set aside.

Under section 56(4) of the Family Law Act (FLA), a court may, on application, set aside a domestic contract or a provision within it if:

  • A party failed to disclose to the other significant assets, or significant debts or other liabilities that existed at the time the domestic contact was made;
  • A party did not understand the nature or consequences of the domestic contract; or
    Otherwise in accordance with the law of contact.

In LeVan v LeVan (2008), the Ontario Court of Appeal discussed the approach taken when setting aside a domestic contract. Generally, the court adopts a two-pronged approach: First, the court will consider whether the claimant seeking to set aside the contract can demonstrate one of the above-noted situations in section 56(4) of the FLA; second, the court will consider whether it is appropriate to exercise its discretion to set aside the contract.

The absence of legal advice can also be a significant factor in assessing whether someone understands a domestic contact. However, the presence of a lawyer is not a determinative factor because a lawyer may not be able to provide protection from unconscionability in the event that one spouse fails to honestly disclosure all of his or her assets or liabilities.

Clearly, couples who enter into a domestic contract must do so with full knowledge and understanding to ensure that the contract will not be set aside post-divorce. In Brad and Angelina's case, it is likely that the couple entered into the contract with a team of highly-skilled lawyers to ensure that they could hold onto their respective fortunes following divorce, but that doesn't prevent one of them from having the contract set aside.

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