'Bennifer’s' Split: A Spotlight on Pre-Nups and Why They Matter for Everyone

Jennifer Lopez and Ben Affleck have called it a day again with J-Lo symbolically personally filing for divorce on the second anniversary of their marriage. 

Whilst after a proposal it is common place for celebrities to enter into a pre-nuptial agreement, (Pre-Nup) rumour has it that “Bennifer” chose not to do so, presumably hoping that the second attempt at tying the knot was going to be forever. 

Pre-Nuptial Agreements are not just for the rich and famous though, and they are increasing in popularity. 

A Pre-Nuptial Agreement is a legal document drawn up by a couple prior to the marriage that typically details existing assets and specifies how those assets and anything acquired during the marriage should be distributed in the event of a future divorce. 

1. Asset protection – a Pre-Nup Agreement can help protect assets that a party to the marriage brings to the relationship such as property, investments and business interests. This can be particularly important if there is a significant disparity between the wealth of the parties. 
2. Clarify financial responsibilities – a Pre-Nup can outline each partner’s financial responsibilities during the marriage, such as how expenses will be shared, how debts will be handled and how assets will be divided in the event of a divorce.
3. Protect family inheritance - if one party has received an inheritance or expects to do so in the future, a Pre-Nup can help ensure that those assets remain within the family in the event of a divorce.
4. Protect business interests - if one partner owns  a business, a Pre-Nup can help protect those business interests in the event of a divorce.
5. Avoid lengthy and costly proceedings during the divorce – by outlining clear terms for asset division and financial responsibilities in a Pre-Nuptial Agreement it may be possible to avoid contested Financial Remedy proceedings in the future if the marriage beaks down. 

In England and Wales, Pre-Nuptial Agreements are not automatically legally binding like they are in some other countries.  They are, however a relevant consideration and the Courts here have a discretion to uphold the terms of the Agreement provided that they meet certain criteria. 

1. The Agreement must be entered into freely by both parties to the marriage without any undue influence or pressure.  The Court will take into consideration circumstances such as the parties’ emotional state at the time of making the Agreement and factors such as their age, maturity and previous experience of long-term relationship.  The timing of the negotiation and execution of the Agreement is crucial, as executing the agreement too close to the wedding might be a factor that renders the Agreement as being unenforceable. 
2. Both parties must have a full understanding of the implications of entering into the Agreement in terms of the context of the assets, income and potential assets such as inheritances and any interest under trust. Each party needs to understand the implications of the Agreement if it was enforced and understand what they may be foregoing.
3. It must be fair to hold the parties to the Agreement.  If the effect of the Agreement would leave one party with less than was required to meet his or her needs whilst the other party was comfortably provided for then this may be considered to be unfair and the terms of the Agreement must not prejudice the reasonable needs of any child of the family. 
4. Has there been a significant change in circumstances since the Agreement was signed that would make it unfair to enforce it?
5. Both parties should have the opportunity to receive independent legal advice before entering into the Agreement. 

Whilst Nuptial Agreements are not automatically enforceable, they can still be persuasive in Court proceedings.  If an Agreement is deemed fair and reasonable and both parties entered into it willingly and with full understanding, the Court may uphold its terms.  The Court ultimately has the discretion to make decisions based on what is fair and just in the specific circumstances of the case, but those entering such an agreement should do so expecting to be bound by it. 

If you require advice regarding either a Pre or Post Nuptial Agreement then please contact Judith Wheeler or Louise Dawson in our Leamington Spa Team or Nicola Starbuck in our Hinckley office, and they will be pleased to assist.