Since Angelina Jolie, to the surprise of many people, decided to file for divorce from Brad Pitt, speculation has gone wild over what happened and what the final outcome of the proceedings will look like. Even though the ensuing custody battle between the two, soon to be ex-spouses, is a private arrangement, it highlights many issues that ordinary people would do well to consider.

One of these is the question of whether a pre- or post-nuptial agreement could be of any aid in a contention of custody of children. Can custody be arranged in a pre or post nuptial agreement?

Had they divorced in England the short answer would be no. Under English law, which is internationally recognised for protecting the financially weaker party in divorce proceedings, the court will look at what is in the best interest of the children and disregard any agreement between the parties in respect to child arrangements.

However, what a pre- or post-nuptial agreement could regulate is a financial arrangement for the children. It could provide a mean to ring-fence assets for children from previous relationships, but also possibly reduce the legal costs for negotiating child maintenance should the relationship between the spouses break down. Overall, a pre- or post-nuptial agreement could reduce the disagreements and disputes of a divorce and in general make the process less expensive, but also perhaps more importantly, less stressful.

If you do not have an agreement already and are worried about what will happen to your children in the case of a divorce there are steps you can take. The Supreme Court has clarified that there is no difference in the legal status between pre-nuptial agreements and post-nuptial agreements, setting aside the past consideration that only post-nuptial agreements were to be given legal effect.

On the whole one should be aware that nuptial agreements are not binding under English law. The court has a broad discretion in regards to how to divide the assets and income in a divorce and this is not something that could be set aside through an agreement. However, in Radmacher v Granatino it was held that the court must take into consideration nuptial agreements when exercising its power in relations to section 25 of the Matrimonial Causes Act 1973. This means that the court is required to consider a nuptial agreement when performing the task of dividing the assets and income. A properly drafted agreement tailored to your needs and situation could therefore provide a considerable safeguard against any unfavourable outcome in a potential financial dispute.

One should be aware that there are several requirements under UK case law which would define how much consideration the court would give to a nuptial agreement. These include whether the agreement is:

  • Freely entered into by both parties.
  • Whether both parties were independently legally advised.
  • Whether they understood the effect of the agreement.
  • Fair.
  • Subject to full financial disclosure by both parties.

Another point to consider is any international elements. In the case of Jolie and Pitt, as usually with many other high net worth divorces, there are both multinational assets and international jurisdictional issues to consider. In Radmacher, the Supreme Court made it clear that normally English courts would apply English law to any nuptial agreement before them, irrespective of the parties domicile or any other foreign connections. The implication of this might be that a financially weaker party could secure a better outcome.

It can therefore be said that although a nuptial agreement is not legally binding and cannot regulate the child arrangements, would Jolie and Pitt divorce in England the court would give consideration to a nuptial agreement even if it contained one or more international elements. Had capital, assets or income been ring-fenced for the children it is more likely than not that the court would uphold such an agreement, since both parties have considerable means and a high ability to make a living.

Mackrell Turner Garrett’s international network provides expertise in the jurisdiction of over 60 countries and we have been awarded multiple times for our work in divorce matters.

For more information please contact a member of our family team.