Rupert Murdoch Heading For The Altar Again?
Written by Russells’ Louise Barretto.
Many years ago, I was asked by Channel 5 News to provide a comment on the upcoming nuptials between Jerry Hall and Rupert Murdoch, and specifically on whether they were likely to enter into a prenuptial agreement prior to their marriage. I see from recent stories that shortly after his divorce from Jerry Hall was finalised, he has been seen in the company of a new lady friend and there is speculation that he may marry again, for what will be the fifth time.
Previously prenuptial agreements were the purview of the rich and famous and were rarely used by the people of more modest means. This is no longer the case, and more and more people choose to try to regulate what might happen with their assets in the event of a divorce, prior to getting married.
Without a prenuptial agreement most assets built up during a marriage will be shared between the parties on their divorce. The starting point is usually a 50/50 split, with certain exceptions. If the parties have entered into a prenuptial agreement that regulates their affairs on divorce, a 50/50 split may not be appropriate.
Whilst prenuptial agreements are still not binding in England and Wales, a properly drawn up agreement will be persuasive when a Court considers the distribution of assets on divorce.
In 2010 our court handed down judgement in Radmacher v. Granatino in which were set out the safeguards that should be met when preparing a nuptial agreement. A nuptial agreement can either be an agreement entered into prior to marriage (pre-nup) or after marriage (post-nup).
The safeguards were said to be the following:
- A nuptial agreement should not be entered into too close to a marriage and it should be raised and discussed well in advance of.
- Both parties should receive independent legal advice from their own specialist family lawyer. It is not appropriate for them to see the same lawyer even if they agree with everything that is to be included in the nuptial agreement.
- The agreement should be signed at least 28 days before the marriage however, this is not always possible.
- It is essential that each party understands the terms of the nuptial agreement and that these have been explained clearly to them by their independent specialist family lawyer.
- Neither party should be pressurised into signing the agreement either by their intended spouse or other family members and there must be no evidence of duress, undue influence, fraud, misrepresentation, or mistake.
- Each party must disclose their financial position and schedules containing that information should be attached to the nuptial agreement.
- Any nuptial agreement that will prejudice the needs of any existing or future children is unlikely to be upheld.
- A review clause should be built into the agreement, providing for its terms to be renegotiated on a significant change in circumstance, examples of which would be the birth of a child or a party becoming long-term unemployed.
- The nuptial agreement must be “fair” in accordance with the principles established in our case law which means that; both parties financial needs are met, no significant hardship will be caused, potential compensation claims are addressed and property argued to be non-matrimonial is clearly defined in the agreement.
In 2014 the Law Commission published its final report on Matrimonial Property, Needs and Agreements together with the draft bill covering nuptial agreements. The Law Commission recommended the introduction of a term known as “qualifying nuptial agreements” which was intended to limit the Court’s powers to make financial orders on divorce and the Court would be prevented from making any orders that were inconsistent with the terms of a qualifying nuptial agreement except; 1) to meet either party’s needs or 2) in the interests of a child of the family.
There are some jurisdictions in which prenuptial agreements are commonplace, especially where they are required to prevent the operation of a default community of property system.
I practised in South Africa for many years and in that jurisdiction unless a prenuptial agreement (ante-nuptial agreement as it is known over there) was entered into, the parties were deemed to be married in community of property and loss. This has significant disadvantages especially where one party gets into financial difficulties and the other party can be held liable for their debts. It was therefore commonplace to have a prenuptial agreement prepared before marriage and it rarely caused uncomfortable or difficult conversations.
Our Family Team can provide assistance and advice on the advantages and disadvantages of a pre-nup and whether one may be suitable in your particular circumstances.