Following widespread coverage on Jennifer Lopez’s divorce, it appears that Jennifer Lopez and Ben Affleck got married without a prenuptial agreement. This has raised eyebrows, given their substantial assets.
A prenuptial agreement is an agreement made by a couple before they marry or enter into a civil partnership, which sets out how they wish to divide their assets in the event of divorce or dissolution.
Whilst prenuptial agreements are not legally binding, they can clarify and set out what property is to be treated as matrimonial and what is non-matrimonial during the marriage or on any future divorce. It can be used to decide, before the marriage, how the property is to be divided in the event of divorce or dissolution.
The couple would both know each other’s financial positions by way of disclosing their assets and income to one another before marriage.
A prenuptial agreement gives the couple freedom to agree own terms to settle on. This could help prevent court’s intervention to impose orders that either of them may not be keen on.
Assets could potentially be protected by “ringfencing” from each other. These could be assets acquired before marriage, inherited assets, business interests, gifts received from third parties etc.
A prenuptial agreement can set out how assets are to be dealt with upon death, which could support the provision contained in the will. It could also specify that each partner is responsible for their own debts, preventing one from being liable for the other’s financial liabilities.
The legal costs involved in getting a prenuptial agreement are usually far less than the legal costs incurred by going to court to reach a divorce settlement.
Following the landmark case of Radmacher [2010] 2 FLR 1900, the Law Commission published a report in 2014 setting out guidelines for a prenuptial agreement to be recognised as ‘qualifying’ nuptial agreement. For a prenuptial agreement to be recognised as ‘qualifying’, the couple need to have entered into the agreement freely, without undue influence or pressure, with their needs being met and upon both having sought independent legal advice, providing disclosure of their financial positions to each other. The agreement must be validly executed as a deed by no less than 28 days before the date of marriage. This basically encourages fairness.
There has since been a shift to this as can be seen in Nockolds’ successful case of NM v PM [2024] EWFC 199 (B) where the court still upheld the prenuptial agreement despite the husband not having sought independent legal advice, financial disclosure not being made by the parties, and the agreement not having been signed until the day before the wedding.
Overall, not only does a prenuptial agreement provide clarity, but it also provides transparency. Whilst you cannot oust the court’s jurisdiction in financial remedy proceedings, prenuptial agreements are becoming very popular in the UK and the courts are seen to be giving more weight to them than ever. It is also important to bear in mind that a prenuptial agreement cannot prevent an application being made to the court for a financial order.
For more information on matrimonial matters or to find out how we can help you, please contact our Family Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.