Love starts with a prenup

AT the recent Florence wedding of Kim Kardashian and Kanye West, there wasn’t a cloud on the picture-perfect horizon. But that doesn’t mean that the couple didn’t contemplate the possibility of stormy weather. They did. Negotiations as to the terms of their prenup were so prolonged and hard-fought, that their wedding date had to be postponed until such time as agreement was reached.

Love starts with a prenup

In the end, Kim apparently settled for a $1m (€735,000) pay-out for every year she stays with Kanye, plus $5m for every additional child she has with him. Given that the couple is worth an estimated $140m — $100m of which is Kanye’s — the terms seem modest to say the least.

She did well compared with her sister Khloe. Under her prenup with her soon to be ex husband Lamar Odom, she reportedly accepted $500,000 per year of marriage with a $2m bonus should she stay four years. That’s precisely what she did. Despite reports of Lamar’s drug-fuelled cheating habits she stayed put in the marriage, then filed for divorce less than three months after the fourth anniversary. Critics say she held on for the money. Romantics say she held on for love.

Fraught as relations may now be between the pair, their prenup seems candy-sweet compared with that of the late Michael Jackson and his wife Debbie Rowe, under which the latter agreed that her time with any children they might have would be limited to one nanny-supervised eight-hour visit every 45 days.

When Catherine Zeta-Jones wed reformed sex-addict Michael Douglas, their prenup focussed on fidelity and finance. It stipulated that she would get $5m if he strayed during the marriage and $3.2m for every year they stayed together. The latter was later reduced to $1.6m, which compares badly with the $3m that Katie Holmes supposedly got for every year that she stayed married to Tom Cruise.

Cruise’s ex, Nicole Kidman, showed more tough love than financial generosity in her prenup with Keith Urban. Under their agreement he reportedly gets nothing if he goes back to his drug-taking ways, but if he stays clean, he gets $640,000 for every year they spend together.

Never known for playing by the conventional rules of marriage, Tiger Woods took a comparably flexible approach to the prenup he had with Elin Nordegren. When she walked away he began prenuptial renegotiations, offering her $60m to stay with him for another two years, rather than take the $20m she was due.

While it’s not surprising that wealthy couples or couples who once had wealth, might have prenups, only a relatively small percentage of Irish couples have them, according to Cork-based solicitor, Ken Heffernan.

“They tend to be couples who’ve been married before, and those who have a family business or an interest in a family farm,” he explains. “Many would have children and property from a previous relationship, so their goal would be to protect existing arrangements around them from being jeopardised or interrupted in the event of a split.”

The fact that prenuptial agreements are merely persuasive as opposed to binding in the Irish family law courts does not inspire confidence. As to why any Irish couples would sign a prenup given their non-binding status, Heffernan says that because there’s no way of knowing how any future separation or divorce proceeding might turn out, couples opt for them in an effort to provide some certainty for their future. “For most, the goal is the making of fair and reasonable provision for each party in the event of a breakup,” he says.

Dublin-based family law solicitor, Marion Campbell, says: “In the event of legal proceedings issuing, the court could take the attitude that the agreed terms should stand, provided that they are fair and reasonable. Alternatively, it could decide not to give weight to the terms of the agreement. The latter would be more likely to happen if the couple’s circumstances had changed substantially since the document was signed, or if one partner had become dependent on the other and the agreement did not provide for that.”

As to who’s most likely to enquire about prenups, Campbell says that she has had quite a number of queries from property-owning women in their 30s, who are close to the top of their careers. “When they move in with a man they contact me with a view to protecting their assets,” she says.

“I explain that even though they’re not married, the man could in the event of the relationship breaking down, seek compensation from her under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. To do this, he must be able to establish that he has become dependent on her.

“While they initially enquire about prenups, I explain that they’re not for couples who are not contemplating marriage, and I advise them that the focus in Ireland is on cohabitant agreements, and that because marriage is no longer the game, it’s those rather than prenuptial agreements that are beginning to percolate in the family law courts.”

Recent research in the UK shows that one in four couples who live together wrongly think they have the same legal protection as married couples. Given that there are more than three million cohabiting couples there, the extent of the misunderstanding is enormous. For those, entering into a cohabitation agreement or a ‘no nup’ as they’re sometimes called would offer protection. But there’s no guarantee that it could solve some of life’s thornier problems, as Ken Heffernan can attest.

While working in the UK, he had sight of a cohabitation agreement that led to a falling out when a couple couldn’t agree as to who could keep their dog after they split. As is so often the case in custody battles, the female was victorious. She won, Heffernan says: “because the mediator brought in to observe the dog’s interaction with both parties decided that the pedigree liked her best.”

London's reputation as the divorce capital of the world has flourished because of the belief that its courts offer better settlements for wives as well as fast justice. Among the high-profile cases to have been settled in London was Heather Mills, who received £24.3m when she parted from Sir Paul McCartney in 2008.

“…in sickness and in health, in Facebook and in Twitter… According to Fox News, American couples are inserting social media clauses into prenups with some agreeing to pay spouses as much as $50,000 per breach. Clauses typically define what couples can and cannot post about each other and how long they may spend online.

The trend typically sees those who post a photo of a bikini-clad wife on Instagram paying a fine if she says it’s unflattering.

The American website Divorce Online claims one third of US divorce filings in 2011 contained the word ‘Facebook.’

How Mark Zuckerberg feels about being linked, albeit indirectly, to the breakdown of so many marriages is not known, but it’s unlikely, given his net worth of $28 billion, that he’d be phased by fines for breaching any social media agreement he might have with his wife.

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