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.
Domestic Contracts
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.