When you’re going through a divorce, you’re likely to be feeling concerned about your finances. If you own a company, you may wonder how you can protect it, and whether...
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The breakdown of the marriage between Johnny Depp and actress Amber Heard has been much in the news recently for various reasons. One of the main issues being repeated is simply: why didn’t Johnny consider a pre-nup?
From a specialist family lawyer’s point of view, one can only assume that at some stage, Johnny and Amber must have considered whether they should enter into a prenuptial agreement. After all, his wealth is estimated at $400million and he has two children from a previous relationship, while Amber has a comparative net worth of $9million with no dependents.
So what is a prenup?
A prenuptial agreement is a formal written agreement entered into by an engaged couple prior to their marriage. It commonly records what should happen to the financial affairs of the couple should the marriage breakdown irretrievably.
Are prenups enforceable?
In the US, they are. However, until recently, under the law of England and Wales pre-nups have not been recognised as being enforceable in the courts. In March 2010, the Supreme Court made a ruling which changed how pre-nups would be treated.
The landmark court case involved a German heiress, Ms Radmacher and Mr Granatino, a French banker, prior to their marriage in 1998 they entered into a prenuptial agreement. When their marriage broke down in 2006, and divorce proceedings were instigated, Granatino attempted to go behind the financial agreement detailed in the pre-nup insisting that he was entitled to more than the financial share he had originally agreed to.
By a majority of eight to one, the Supreme Court justices concluded that in the right case such agreements can have decisive or compelling weight and that “it will be natural to infer that parties entering into agreements will intend that effect be given to them”.
Who might benefit from a prenup?
Radmacher and Granatino involved a substantial fortune, as does Jonny and Amber’s situation. So are pre-nups only for the rich and famous?
At Sharp Family Law we actually see pre-nups being particularly useful to families wanting to pass wealth down the generations. Potential gifts or inheritance received during the marriage can be ring-fenced. Pre-nups can also be highly appropriate in second marriages where wealth accrued prior to the marriage can be protected.
From our offices in Bristol and Bath, our aim is to limit where possible the negative impact that marital disputes issues can have upon a family. We see clients contemplating marriage for a second time anxious not to repeat the trauma of divorce and financial separation. By entering into a prenuptial agreement, they may be able to protect their future financial wellbeing as well as their children’s inheritance.
When should a pre-nup be entered into?
Care must be taken not to leave preparation of prenuptial agreements to the last minute. Instead, a couple must ensure that they each receive independent legal advice in good time before the wedding. If left too late then one side could argue that they suffered emotional pressure to enter into the agreement.
Of course there are those who remain sceptical of prenuptial agreements claiming that they take the romance out of what should be an entirely romantic experience – this is apparently how Johnny felt – m and perhaps they are right; pre-nups are not for everyone. However those who have an eye on the ‘bigger picture’ and who want to avoid prolonged conflict for the family if their marriage should breakdown may wish to consider a pre-nup.