The 36-year-old American socialite and businesswoman Kim Kardashian has been a prime example of the fact that divorce doesn’t have to be the end. In fact, it can be the start of a happier, more successful life. Kim is no stranger to divorces, after all she has had two past ones herself. And yet these divorces have been a blessing in disguise for Kim, allowing her to find love again in the form of the American rapper and long-time friend Kanye West.
The two are still going strong after three years of marriage, two children and possibly a third one on its way soon through surrogacy. And she is not only thriving in her private life. Thanks to the smart use of social media to market herself (Forbes magazine described her as having the ability to monetise fame better than anyone else), Kim’s career has also boomed in recent years, and she was estimated to be worth a whopping US$53 million in 2016.
Recently, there have been whispers about a possible divorce coming up between the two, a result of Kanye’s mental health issues which led him to have a breakdown last November. However, Kim and Kanye have themselves refrained from commenting on such news, and life is going on as usual in the West household, so there seems to be no basis for these talks of divorce. But what would happen if at some point Kim and Kanye’s marriage were to really break down?
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Prenup: the starting point
Dividing up matrimonial property and settling custody of the children can be complicated, especially when there are such enormous figures at play as in celebrity divorces (between the two of them, Kim and Kanye have a US$300 million fortune). There are many factors which judges take into account when deciding how the split should go, from the welfare of the children, to the establishment of the appropriate apportionment of pensions, passing through alimony and other matrimonial assets.
What would make this case easier to deal with is Kim’s insistence to complete a prenuptial agreement, as she had also done for her previous marriage. Most of these agreements made in the US are binding on the couple, and usually contain all the necessary clauses as to what will constitute the matrimonial assets, how they will be divided during divorce and what will happen to any eventual child. This makes them quite different from prenuptials in the UK, which are not as strictly binding and are only one of the elements which a court will take into account.
Kim’s prenuptial, in particular, clearly sets out that all the earnings from her TV show Keeping Up With The Kardashian‘s, her clothing and make-up lines, as well as her promotional appearances, will not be considered matrimonial assets, but her separate and sole income. As such, they would not be split amongst the two, but would remain only to her.
Moreover, Kim is going to get the legal title of their Bel Air home, she will be named as beneficiary for life of one of Kanye’s life insurance policies worth US$20 million, and she will receive US$1 million for every year she stays married to Kanye (although this is capped at $10 million).
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Thinking about the children
One issue which Kim and Kanye’s prenuptial agreement negligently fails to address is who will get custody of the two children, 3-year-old North and her 1-year-old brother Saint. The internationally held standard, as set out in the United Nations Convention on the Rights of the Child, is that custody will be assigned in accordance with the best interest of the children.
It is always preferable for the parents themselves to decide together who will get custody, possibly with a help of a mediator if they are having trouble coming to an agreement. However, if no agreement can be reached, the court will decide by itself, weighing several factors which will identify who would be the best custodial parent for the child.
First of all, the judge will listen to the wishes of any children who are are old enough to express their informed preference, although in North’s and Saint’s case this is not really possible. The court will also take into account who the primary caretaker of the children has been in the past, the financial situation of the parents, and who can provide the most stability for the child in relation to their emotional and educational needs.
In Kim and Kanye’s case, the fact that Kim would get ownership of the family home in which they usually reside would probably be a point in her favour, as preventing an upheaval in the children’s place of residence would count towards their welfare. Luckily though, Kim and Kanye’s marriage seems as strong as ever and there is no divorce in sight, and North and Saint will hopefully continue to enjoy having both parents at home with them.