Britney’s divorce from her third husband, Sam Asghari, has hit the headlines in recent weeks, with Sam now having filed for divorce, citing “irreconcilable differences” and seeking financial support from Britney.
Britney Spears and Sam Asghari married in June 2022, in the same month that the singer’s 13-year conservatorship came to an end, putting her back in charge of her estimated $60m (or £45m) estate. So whilst this has only been a short marriage, it would still give rise to a potentially significant claim against Britney’s large estate. However, it appears that as part of taking back control of her estate, Britney decided to enter into a pre-nuptial agreement with Sam.
Pre-nuptial agreements (or “pre-nups”) are common in the USA and Europe, especially among the super-rich. This pre-nup should, unless invalidated for some reason, provide Britney with substantial protection from any financial claims that Sam is potentially now bringing.
Despite being known as the “divorce capital of the world”, pre-nups are less common in England and Wales, principally because they are not watertight in this jurisdiction. However, if the parties agree to abide by the pre-nup and take certain precautions when preparing it to make it as fair as possible, then they can significantly reduce the time, acrimony and money involved in the divorce process.
Pre-nups are particularly useful in cases such as Britney’s, where it is a third marriage, and one party has acquired significant wealth before meeting their spouse which they want to protect. Even where one party later on tries to get out of a pre-nup, the fact of its existence is taken into account by the judge as one of the “circumstances of the case” when making a decision on how the assets should be split so they still can offer some protection even then.
Whilst pre-nups may not be right for everyone, and potentially against British sensibilities, they allow couple to calmly agree the terms of how assets and income will be held during marriage and how they would be divided fairly in the event of divorce, in much the same way that a will deals with how their assets are to be dealt with on their death. This can allow couples to ring fence assets that would otherwise be subject to division if the matter went to court on a divorce and allows parties to know where they will stand in the future, as well as avoid the costs and angst of litigating over the division of their finances on a future divorce. As Britney is now on her third divorce, and she has considerable assets, her legal representatives would have advised her to sign a pre-nup to help ensure her assets would be protected on a divorce.
When drafting the pre-nup, it is likely that Britney and Sam would have been expected to give full disclosure of their finances to the other and to take independent separate legal advice on the agreement before signing if it had been done in England and Wales. As pre-nups in this jurisdiction are required to meet certain conditions to be legally binding, couples here are expected to review and update their pre-nups wherever necessary after any big development such as the loss of a job or birth of a child. Failure to update the pre-nup on these events may cause the pre- or post- nup to become unenforceable. As Britney and Sam’s marriage only lasted 14 months, if it was an English pre-nup, it would not have been required to be reviewed and the wishes of the couple are likely to have been adhered to by the courts of this country.
There are, however, risks with these agreements, such as when a couple is international and move to another country during the marriage and forget or do not think about entering into a mirror post-nuptial agreement in the new country, as the local courts may not uphold the original pre-nuptial agreement if the divorce took place in the new country of residence. For instance, if Britney and Sam had decided to move to London during their marriage, their lawyers may have advised them to enter into a post-nup drafted on the basis of English law to help ensure the agreement would be legally binding in this jurisdiction, but the fact that there had been a pre-nup would likely still be taken into account in a decision, even if it was not followed to the letter, that would ensure some sort of departure from a 50:50% split, which is the standard starting point under English and Welsh law where there is no pre-nup in existence.