A rumoured agreement between Catherine Zeta-Jones and Michael Douglas has been central to prenup folklore ever since it was reported in a New York Daily News article around the time of the couple’s New York City wedding in 2000. In the event of divorce, the story claimed, Douglas would pay Zeta-Jones $2.8 million for every year of marriage plus an additional $5 million if Douglas were to be unfaithful.
Understandably, the story caught the public imagination. Zeta-Jones may have even fanned the flames herself when she took a role in the 2003 Coen Brothers movie, Intolerable Cruelty, which could have been inspired by the terms of her own real-life prenup.
In reality, top US lawyers say, infidelity clauses in prenups are vanishingly rare. But their close cousins – ‘lifestyle clauses’ – are becoming increasingly common. And, in some cases, increasingly idiosyncratic.
Related
Lois Liberman, a New York matrimonial lawyer who has worked on hundreds of prenups in a decades-long career, says she has only ever seen ‘a handful’ of infidelity clauses. She recalls one case in which a penalty could have been triggered but never was; the agreement required a very specific standard of proof in order to be enforced. Infidelity is not always black and white, after all.
‘The more emotional the clause, the more lawyers tend to insist on objective standards,’ adds Kelly A. Frawley, head of New York firm Kasowitz’s matrimonial and family law practice. ‘No one wants a divorce trial turning into a forensic review of late-night emojis.’
But prenups can include other non-financial terms that affect couples’ married lives. These can cover practical arrangements, such as how household chores are split. They sometimes veer into more personal territory too. In such cases, they could stipulate that one or both spouses maintain a certain weight, or that they present themselves in public in a certain way.
[See also: Divorce Italian style: As HNWs flock to Italy, so are family law firms]
Content from our partners
In addition to appearance, privacy is a popular subject of the clauses, notes Fara Rodriguez, a principal at US firm Offit Kurman.
‘Social media has fundamentally changed the stakes. Reputational harm can occur instantly and globally, and many clients now view privacy protections as just as important as financial protections,’ she explains. ‘“What happens in the marriage stays off Instagram” is increasingly becoming a drafting instruction.’ She notes that some clients seek to pre-emptively prevent their spouse from unilaterally revealing details about the relationship or other aspects of family life.
In the US, these provisions can be enforced, provided they are properly disclosed, entered into voluntarily and do not fall foul of public policy rules. But the situation varies from state to state. Certain conduct-based provisions, from gambling-related clauses to some infidelity penalties, may be upheld in one jurisdiction but viewed more sceptically in another – ‘particularly if they appear punitive rather than compensatory’, notes Rodriguez.
In the UK, lifestyle clauses are even more difficult to enforce, says Will MacFarlane, a partner at Birketts. As a result, they are generally discouraged by lawyers and ignored by courts. This doesn’t mean that they have zero value, however, as they can still serve as ‘ground rules’ for couples by setting broad expectations around spending, saving or financial habits.
Nick Manners, head of the family department at Payne Hicks Beach, agrees that lifestyle clauses are ‘not common’ and are unlikely to be enforced. He points to the case of Sutton v Mishcon de Reya, where the court refused to enforce a cohabitation agreement ‘which was based on a couple’s “master/slave” sexual fantasies and requirements relating to their dominant-submissive relationship’.
[See also: How non-disclosure became the defining battleground of HNW divorces]
Manners adds that clauses pertaining to personal matters – whether sexual practices or physical appearance – are not something with which British judges want to interfere. ‘The English court is pragmatic and is focused on the financial reality,’ he says. ‘It is not a court of morality or a court that polices an individual’s weight.’
Meanwhile, with or without that rumoured prenup, Zeta-Jones and Douglas are still together after 25 years of marriage.
