Do Somethin’: Britney Spears And An ‘Iron-Clad’ Prenup 

Published on 21 June, 2022 | Louise Butcher

No matter how much couples might not want to consider the prospect when they exchange vows, divorce is, sadly, a reality for many spouses.

According to figures published the Office for National Statistics (ONS), 42 per cent of marriages end that way (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020).

However, arguably one of the most positive developments in family law over the last decade or so has been the increasing number of individuals who marry or enter a civil partnership having put a pre-marital contract – or prenup, for short – in place.

It’s difficult to say exactly how many couples nationwide have drawn up the documents but, from my experience and those of my colleagues and peers, they are proving more popular year by year.

A prenup sets out what individuals intend to happen to their money and property if their marriages don’t last the distance.

They had usually been regarded as the preserve of the very wealthy until a significant  Supreme Court ruling in 2010 in the case of a German heiress Katrin Radmacher (https://www.supremecourt.uk/cases/docs/uksc-2009-0031-judgment.pdf).

Her financier ex-husband, Nicolas Granatino, unsuccessfully attempted to depart from the terms of their prenup.

Apart from the direct implications of that judgement for Ms Radmacher and Monsieur Granatino, it had consequences for many others too.

Most notably, it led to something of a democratisation of prenups. Now, couples with or without considerable means put the documents in place to simplify – and take some of the potential for disagreement out of – the process of asset division on divorce.

It is worth remembering, though, that whilst a pre-nuptial agreement carries weight in helping determine a divorce settlement, it is not legally binding.

That was something which came to mind when reading press reports about the recent marriage of the singer Britney Spears (https://www.dailymail.co.uk/tvshowbiz/article-10912929/Britney-Spears-husband-Sam-Asghari-signed-prenup-wedding.html).

Before exchanging vows with “aspiring actor’ Sam Asghari, the couple had agreed what was described as an “iron-clad” prenup, preventing him from receiving “a cent” of her multi-million dollar fortune in the event of a divorce.

Whilst their prenup will have been drawn up under US law, the principles are broadly the same as those applying to pre-marital contracts composed in England and Wales.

That means that each of the individuals involved should have independent legal advice. There should also be full and frank disclosure of respective assets and no duress.

Above all, however, they must be fair.

When handing down its ruling in the case of Katrin Radmacher, the Supreme Court made clear that courts should “give effect” to the terms of a prenup, “unless….it would not be fair to hold the parties to their agreement”.

By that, the Court was referring to the fundamental elements of a divorce settlement.

Even after the introduction of ‘no-fault’ divorce in April, they are still governed by section 25 of the Matrimonial Causes Act 1973 (https://www.legislation.gov.uk/ukpga/1973/18/section/25).

It sets out the things – including spouses’ incomes and future earnings, their respective needs and the standard of living enjoyed by a couple before their marriage broke down –

which need to be taken into account when deciding the size or nature of a settlement.

There have already been examples of divorces in which prenups have been held to be unfair.

Four years ago, a woman who managed to persuade the High Court to set aside the “blatantly unfair” terms of the prenup which she had signed was awarded a lump sum £2.73 million (https://www.bailii.org/ew/cases/EWHC/Fam/2018/499.html).

That was just one example of why no prenup should ever be classed as “iron-clad”.

If couples experience a significant upturn in fortunes arising from business success, inheritance or even a lottery win, a divorce settlement will bear those in mind.

We always suggest a regular review of prenups over the course of a marriage to ensure that they remain fair and fit for purpose. Things such as the birth of a child or a change in income can prompt a revision of the terms to ensure that the document remains relevant and fair.

With a possible return to full-time performance on the cards after the end of a conservatorship, one would expect Britney Spears to see her earnings increase.

Whilst I’m sure that everyone wishes her the very best of luck, she has seen two previous marriages end either in annulment or divorce.

If her career takes off once more but her new marriage fails, Mr Asghari might come to regard their prenup as worthy of being challenged.

Whether in their case or that of a couple whose marriage did not take place in the celebrity spotlight, a prenup is eminently practical but it must be fair to avoid financial discussions in a possible divorce turning ‘Toxic’.