A look into pre-nuptial agreements
We will have all seen across our social media and news feeds the sad reports that Jennifer Lopez has filed for divorce from Ben Affleck following two years of marriage.
The parties had initially commenced their relationship in 2003 when they had met whilst filming and had originally planned to marry that year but called off their relationship.
The parties had then, some 20 years later, rekindled their relationship and went on to marry in 2022. It would seem however, that Miss Lopez has filed for divorce in Los Angeles Superior Court. It is notable that Miss Lopez has not referred in the divorce papers that there was a Pre-Nuptial Agreement at this stage.
It is estimated that Miss Lopez’s wealth is estimated to be in the region of $400 million, a rise of $250 million since 2020. Whereas Mr Affleck’s is in the region of $150 million, a rise of $95 million since 2022. The parties also have a $68 million property which has recently entered the market for sale. It is extremely unusual in circumstances where one party has such exceptional wealth over and above that of the other for there not to be a Pre-Nuptial Agreement in place.
A Pre-Nuptial Agreement would have assisted the parties in this case in ensuring that their wealth was kept separate and would have, in effect, protected Miss Lopez from any claims by Mr Affleck. It is noted that the marriage has been a short duration of two years and certainly the courts in England and Wales would take this into account when looking at any financial order.
In England and Wales, the starting point for all matrimonial settlements is a 50/50 split of all the assets. This therefore could well mean that if the same provisions apply in the U.S. than Mr Affleck would stand to benefit significantly from Miss Lopez’s estate.
The Court, of course, would have to consider Section 25 of the Matrimonial Clauses Act and certainly the Courts in England and Wales are governed by this statute. The statute provides for the Court to consider, amongst other things, the following:-
- The first and the most important consideration for the Court would be the welfare of any child of the family, while they remain under the age of 18.
- The Court would also consider other factors as follows:-
- The income / earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future, including each parties earning capacity;
- The financial needs obligations, responsibilities and resources of the spouses, both during the marriage and after the marriage has ended;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each spouse and the duration of the marriage;
- Any physical or mental disabilities of either spouse;
- The contributions made by each spouse to the welfare of the family, including financial and non-financial contributions;
- Conduct, if this is relevant to the financial resources of the marriage, albeit, this is rarely considered;
- The value to each of the parties to the marriage of any benefit which by reason of the dissolution or annulment of the marriage, that party will lose the change of acquiring.
Many of the above points will not be of great concern to any judge looking at the couples’ affairs.
There is potential of a Pre-Nuptial agreement in the divorce which hasn’t yet been revealed. It is not always necessary to reveal any agreement in the divorce papers. Many will also be watching how the courts approach the pre-nuptial agreement, if in place. One of the leading cases concerning the validity and enforceability of Nuptial Agreements is Radmacher v. Granantino in which the court found in favour of the terms of the Pre-Nuptial Agreement being applied. Since that decisive case in 2010 there have been further cases in which the courts have considered that such Agreements have shown intention between the parties to reach a financial settlement upon breakdown of their marriage which should then be reflected in a financial court order. As both parties seem to have increased their wealth significantly during their relationship the division of this money and the creation will no doubt be disputed.
This is an extremely complex area of law and whilst the starting point for all matrimonial settlements is a 50/50 split, there is often a sway away from this depending upon the factors of the case. It is therefore imperative that legal advice is sought from the outset in order to ensure that you are fully protected and advised as to your entitlement.
A Pre-Nuptial Agreement is now not something which is only at the behest of celebrities and professional footballers, but now day to day people who wish to protect their assets going into a marriage or potentially a second marriage where there are children from a previous relationship.
Marriages are a happy occasion where individuals look to live the rest of their lives together, in changes of circumstances, the finances around any marriage can be complicated. At Emsleys Solicitors we can help any finances of a relationship with both pre and post nuptial agreements or where there is no agreement. In times when a marriage has irrevocably broken down, our team are here to advise on divorce, financial and children in a reassuring and sensitive manner to ensure that you receive the best advice and resolution from the start.
