Can prenups be renegotiated – and if so, what is the point in getting one?
Britney Spears and Sam Asghari have officially separated after 14 months of marriage, according to media reports. Asghari has filed for divorce from the singer, citing ‘irreconcilable differences’ as the reason for their relationship breakdown.
Initially, reports spiralled that Asghari threatened to release embarrassing material about his ex-wife unless concessions were made on the prenuptial agreement. Although these have since been denied, the question around the couple’s prenup remains interesting. If Asghari decides to try to renegotiate the terms of the agreement, it will be interesting to see how this is managed under United States law.
The couple’s potential prenup was intensely discussed in the media and among other celebrities at the time of their engagement in 2021.
It was also complicated somewhat by the timing of the announcement, as it coincided with the imminent ending of the conservatorship that had managed Britney Spears’ life up until that point, as many questioned whether Spears’ father, her conservator, would play a role or if Spears would even be permitted to enter into a prenuptial agreement.
However, legal filings at the time of Spears and Asghari’s engagement stated they would be entering into a prenuptial agreement – following in the footsteps of other celebrities and the super wealthy.
It is important to note that whilst prenuptial agreements are recognised in all 50 States in the US and are enforceable if prepared according to state and federal law requirements, in the UK, they are not legally enforceable.
What is a prenup?
Offering a certain level of protection, a prenup (or postnup) sets out the ownership of belongings (money, assets and property) and what will happen to them in the event of a breakdown of the relationship.
They are no longer the preserve of the super rich, and are rising in popularity among many couples in the UK as well as in the States.
They can be used to cover a wide variety of assets. Some people even have them for their pets (known as the petnup) but they are particularly useful for people with:
- Any inheritance or future inheritance
- Assets and/or property that would be difficult to split 50/50
- Any children from a previous relationship to ensure that certain assets are reserved for them and protect their inheritance rights. (It is also crucial to make a Will)
- A business to retain control of any outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect from being liable.
Nuptial agreements carry weight if the following factors are met, however, they are not legally binding and can be overridden by the courts:
1) There is financial disclosure,
2) Each party has legal advice,
3) Both parties enter into the nuptial agreement voluntarily,
4) The nuptial agreement meets the needs of the parties and any minor children, and,
5) They are agreed in advance of the marriage, and must be at least 21 days before.
If there are financial court proceedings, the court will consider the nuptial agreement, therefore you should not enter into a prenuptial agreement unless you intend to be bound by the terms of that agreement.
Can I make changes to my prenup?
So if the rumours are true, and in Britney’s case, her ex-husband pushes to have the prenup renegotiated, is that possible here?
Under English and Welsh law, upon separation, a court will consider the finances in the present day against the circumstances of the individual parties at the time of the divorce.
It is therefore very important that a nuptial agreement is reviewed and amended to include any major change throughout the relationship. The more accurate the nuptial agreement is, the better. Usually, it is expected for a nuptial agreement to be reviewed at least every 5 years.
Prenups can only be renegotiated if the parties are each in agreement with this. Otherwise, the Court will need to get involved.
However, it is very rare for a prenuptial agreement to be renegotiated upon separation and it would depend on what parts one party is seeking to renegotiate and why, how old the prenuptial agreement is, and whether the circumstances have changed.
This is why it is imperative that any nuptial agreement is kept up-to-date and properly prepared by legal experts.
As the Britney and Sam divorce drama continues to unfold, it will be interesting to see if the couples’ prenup is adhered to or if amendments are made. And if it is amended, what does that mean for the future of prenups in the US? Time will tell.
Hannah Mugleston is an Associate in our Reading, Oxford & Banbury family law teams.
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