News broke last week that Ed Sheeran, singer song writer estimated to have a net worth of £37million, is engaged to marry his childhood crush, Cherry Seaborn. The couple, who were classmates at school in Suffolk, were engaged over Christmas but had kept it a secret until last week when Sheeran announced the news on Instagram. What is so heart-warming about their story is that, despite Sheeran’s international superstar status, he pursued his school crush taking a year out of his work in 2016 so that they could travel the world.
Although Cherry is successful in her own right and has reportedly worked as an Advisory Consultant at a well-known consultancy firm, there is likely to be a huge disparity in their financial positions. It is more than likely that those working closely with Sheeran will advise him to protect his huge wealth in light of the impending nuptials. This would be by entering into a pre-nuptial agreement. Below I discuss what a pre-nuptial agreement is and whether it is worth the paper it is written on.
What is a pre-nuptial agreement?
A pre-nuptial agreement is a legal agreement entered into by two individuals ahead of their marriage. The agreement will usually set out how the couple wish their assets and income to be divided should they later separate or divorce.
What is typically contained in a pre-nuptial agreement?
A pre-nuptial agreement will usually set out which party will own what assets on the breakdown of a marriage. There will be a distinction made between “matrimonial” assets which will be assets acquired during the marriage or held in joint names, and “non-matrimonial” property which will include assets owed prior to the marriage, inherited assets or assets gifted to one party during the marriage. The agreement will almost certainly deal with the division of these classes of assets differently on the end of marriage, most commonly dividing “matrimonial” assets equally but taking a very different approach to “non-matrimonial” assets.
The agreement may also address income such as how future income and income from a trust fund should be treated. It is common, where one party earns or is anticipated to earn significantly more than the other, that provision will be made for the weaker party to receive spousal maintenance from the other party in the event of the marriage breaking down, unless the division of capital is sufficient to provide them with an income stream.
Why do people enter into pre-nuptial agreements?
People enter these agreements for all sorts of reasons, but typically, where one party is in a stronger financial position like in the case of Sheeran and Seaborn. In these circumstances, one party will be aiming to protect assets such as pre-marital assets or inherited assets on a marriage breakdown. Oher reasons can include to provide certainty for couples or to limit the scope of future litigation in the event of the marriage coming to an end.
Are pre-nuptial agreements legally binding?
Although pre-nuptial agreements are not legally binding, following the ground breaking case of Radmacher v Granatino , provided certain factors are met, pre-nuptial agreements should now be considered as virtually determinative in matrimonial litigation. The courts will find it ‘natural’ to infer that parties that enter into a pre-nuptial agreement wish to be bound by it.
Pre-nuptial agreements will be considered as binding on the parties who entered into an agreement if the court is satisfied that:-
1. There has been some material disclosure.
It is important that each party should have all the essential (albeit brief) information of the other party’s wealth, so that they are able to make a decision in light of that information as to whether to allow themselves to be bound to the terms of the agreement.
2. Each party should have the opportunity to seek legal advice.
Both parties have freely been able to take legal advice if they so wished. If one party does not seek advice in relation to the pre-nuptial agreement but had ample opportunity to seek the opinion of a solicitor, the lack of advice will not prevent the agreement being upheld as binding.
3. The basic vitiating factors are not present.
There is no presence of fraud, duress or misrepresentation on the part of either party.
4. Both parties entered the agreement in a calm rational state.
The court can and will take into account a party’s emotional state at the time the agreement was signed. Therefore it is always prudent to execute a pre-nuptial in good time prior to the wedding.
5. The agreement was fundamentally fair at the time it was entered into.
Although the definition of “fundamentally fair” remains untested, the agreement should be reflective of matrimonial law as it currently stands, albeit on the protective end of the spectrum. It is likely that the more draconian the agreement, the more open to challenge it may be in the future.
6. Current and future children
The pre-nuptial agreement does not attempt to fetter the reasonable requirements that any future child or children may have.
It is unclear whether Sheeran will enter into a pre-nuptial agreement, and if he does, it is unlikely that this will ever become public knowledge. It is, however, cases like Sheeran’s and Seaborn’s, where there is a considerable disparity in wealth, that pre-nuptial agreements are more common.
If you would like any further information or advice in relation to this area of law please do not hesitate to get in touch.