Oops!....I did it again - Britney's third divorce

Having finally been released from a near 14 year conservatorship, Britney Spears was free to marry her long term boyfriend, Sam Asghari, in June 2022.  However, a few days ago Sam Asghari announced that after only 14 months of marriage he is ending their "journey together" and has filed for divorce. This was Britney's third marriage, the first to her childhood sweetheart having lasted a matter of hours before being annulled and the second, to Kevin Federline, lasting 3 years.

It is unsurprising to learn that the parties had a prenuptial agreement but, fortunately for Britney, Asghari has recently denied media reports that he plans to challenge the terms of that agreement. Proceedings have been filed in Los Angeles and so this case will proceed in the USA, but what would the position be in England?

Although commonplace for years across Europe and elsewhere, the steady rise in parties entering into prenuptial agreements in England has mainly taken place over the past 10-15 years.  Twin drivers behind this increase must surely be the English courts gaining notoriety as the "divorce capital of the world" and the Supreme Court decision in Radmacher v Grantatino in 2010 which marked a significant change in the way English courts approach prenuptial agreements. 

The test established in Radmacher is that the court should give effect to a nuptial agreement if (i) it was freely entered into the parties; and (ii) that they had a full appreciation of its implications; unless  - and this is often the crucial condition - in the circumstances prevailing it would not be fair to hold them to it. 

Freely entered into 

To satisfy the first of these limbs, it is important to ensure there is no undue pressure nor other standard vitiating factor. To satisfy this, professional practice has evolved to ensure that any such agreement is entered into at least 28 days before the wedding. Having said that, it is doubtless often illusory to suggest there has been no pressure simply because an agreement is signed at least 4 weeks before the wedding - weddings are often months or even years in the planning, with supplier contracts signed and "save the dates" or invitations distributed well in advance.

A full appreciation of the implications

This limb requires a number of elements to be satisfied. 

It will always be important for both parties to receive specialist independent legal advice, often procured at the expense of the wealthier party to the marriage who is likely to be the one seeking a measure of financial protection. The reason for this is not, as a cynic might suspect, to line the pockets of lawyers, but to ensure that the parties receive advice about the proposed financial provision to be made in the prenuptial agreement (which can often be complex). It is also critical for the parties to understand what the position would be (i) if they were not to marry at all or (ii) if they were to marry without such an agreement in place. In other words, they must each have a full understanding of the rights/obligations they are giving up and the commitments into which they are entering. 

In cases with an international dimension, typically where one or both of the couple is not English, it may be necessary to take advice in more than one jurisdiction and to ensure that any agreement is compliant with, and would be recognised by the law in, each relevant jurisdiction.  

Full financial disclosure will also need to be given by both parties as part of the negotiation process. Here a balance must be struck. There is not usually any requirement for expert valuation evidence, supporting documentation or anything like the level of detail required as part of the disclosure process on divorce. However, it is important to have sufficient clarity about the financial landscape to advise what provision might be reasonable in the circumstances. It is critical not to undermine the integrity of an agreement by failing to disclose adequately.

Not unfair in the circumstances prevailing

This final element of the test requires something of a crystal ball to the future and an objective review of the "fairness" of the agreement and its effect if it were upheld. It can be very difficult to assess now what might be fair in the future - How many children might there be? Where will the parties be living? What will the assets and income be at that time? What will the standard of living be? A review clause after defined periods of time or landmark events can ease this difficulty but present others - What if no review is undertaken or no agreement can be reached? Incremental awards according to the length of the marriage or upon the birth of children can also assist.

There is also the important question of what should be considered "fair" in the context of a prenuptial agreement and how that might differ from what is considered "fair" upon divorce (absent a prenuptial agreement). In the latter case, the courts have told us that "fairness" requires a 50/50 division of the marital acquest and proper regard must be had to the three principles of "needs", "compensation for relationship generated disadvantage" and "sharing the fruits of the marriage." Why - and if so to what extent - should "fairness" be interpreted differently in the context of a prenuptial agreement?

In answering this question, the court has made clear it will respect the autonomy of the parties and will not override the terms of a prenuptial agreement simply because it would have made a different decision.  However, a prenuptial agreement will be considered to be unfair if it prejudices the needs of any child of the family or if it leaves one party to the marriage in "a predicament of real need" - although the interpretation of "need" will, in turn, depend upon the circumstances of each case. 

Conclusion

In England, therefore, if a prenuptial agreement satisfies the Radmacher test its terms will be endorsed by the court. However, on grounds of public policy, a nuptial agreement does not have contractual force and if it fails one of the three tests outlined above it is potentially vulnerable to modification or rejection on a variety of grounds. To give an agreement the greatest prospect of being upheld it will always be important to take specialist matrimonial advice on entering into such an agreement. 

In theory, a prenuptial agreement should allow a happy, cooperative couple working at their best to resolve what they each consider to be "fair" at the start of a marriage. In this way they can each enter the marriage with clarity about their respective positions and avoid the time, emotional and financial cost of divorce should that eventuate.  Indeed, one of the main advantages of having such an agreement is precisely to avoid such a costly dispute on divorce. 

Sadly that does not always prove possible though and so Asghari's confirmation that he does not propose to mount a challenge to the prenuptial agreement will no doubt delight Britney, bringing welcome confirmation her divorce is unlikely to become more "Toxic" or that she will be "Hit one more time".