Jennifer Lopez and Ben Affleck’s Divorce: Why a Pre-Nuptial Agreement should have been important

In recent news Jennifer Lopez and Ben Affleck settled the dividing of their assets. The separation of this couple came as a shock to the masses. The famous couple married in 2022 without a pre-nuptial agreement. It is alleged that Jennifer Lopez was the financially stronger party with her assets amounting to $400,000,000 and Ben Affleck’s amounting to $150,000,000. It is purported that they have opted for a clean break, where they are both leaving their marriage with what they respectively came to the marriage with and what they individually acquired during the marriage. Although, allegedly, there is also a private agreement concerning a jointly owned property in Beverly Hills.

Without a pre-nuptial agreement in place this could have ended very differently for all concerned.

Financial matters when divorcing

6 January 2025 was ‘Divorce Day’. ‘Traditionally’ this is known as the day when increased numbers of divorce applications are lodged with the courts or when people make the most enquiries seeking legal advice about the divorce procedure.

However, with the rise in divorces during the pandemic coupled with the current economic crisis – is Divorce Day still a true name’s sake?

Statistics collated by the Office for National Statistics determined that there were 80,057 divorces granted in England and Wales in 2022, which was a 29.5% decrease from 2021 where 113,505 divorces were pronounced. Unfortunately, a common concern that is often raised by divorcing couples is their hesitation to formally end their marriage due to financial uncertainty in the future.

Achieving security with a pre-nuptial agreement

One way that couples can look to achieve some security in respect of their assets is by entering into a pre-nuptial agreement. However, it should be noted that these are not legally binding, but significant weight is placed on them by the court as it shows the intention of the parties. The courts do have the power to override such agreements if they need to focus on the parties’ financial needs when separating.

Advantages of a Pre and/ or Post-nuptial agreement

There are many advantages to pre and post-nuptial agreements, such as:

1. Clarity and asset protection – intended spouses can set out ‘non- matrimonial’ property, in attempt to ringfence certain assets and the value of what their intended spouse is agreeing to surrender an interest in.
2. Certainty and transparency – there will be a schedule of each intended spouses’ disclosed assets annexed to the agreement, so from the outset it will be clear what division will likely be achieved upon separation.
3. Debt protection – if an intended spouse has significant debts a pre/ post-nuptial agreement can set out that the other spouse’s assets are not to be used to satisfy their intended spouse’s debts following marriage/ separation.
4. Compensation for loss of career – if an intended spouse gives up a lucrative career for the family, during the marriage, they can seek a greater share of the assets due to their imbalanced earning capacity on separation.
5. Provision on death – parties can clarify what they wish to happen to their assets should they pass away, to bolster a will.
6. Authenticity of love – if an intended spouse has concerns that their partner is marrying them for their assets, some argue that their concerns are alleviated when their intended spouse agrees to enter into a pre/ post- nuptial agreement which sets out a fair split of assets should they separate.
7. Freedom to negotiate terms – this list of advantages is not exhaustive as parties can negotiate an array of terms to suit their assets and how they wish to separate these, should they divorce, without the risk of a court insisting on a particular conclusion.

Disadvantages of a pre/ post-nuptial agreement

Of course, every positive comes with a negative. Some disadvantages of a pre/ post-nuptial agreement are:

1. Not legally binding – the court has the power to override such an agreement if it is not fair, or an intended spouse did not freely choose to enter the agreement nor did they fully understand the implications, or there are insufficient assets at the time of separation to meet the parties needs etc.
2. Changes in circumstances – if there are significant changes to circumstances during the marriage such as a spouse losing their job, parties having more children, or someone is diagnosed with a disability and these changes are not accounted for in the agreement there is a risk that the agreement will no longer be considered relevant and the court will likely use its powers to override it.
3. Review – there should be trigger events, such as the birth of a child etc to prompt the review of such an agreement to keep the terms relevant. However, this will continue to increase the cost of the matter throughout the years, but it will increase the chances of the court placing weight on the agreement when considering the split of marital assets.
4. Unromantic – undoubtedly many intended spouses will view such an agreement unattractive when planning a wedding. As most couples do not marry with an intention to separate.
5. Stressful – negotiating financial arrangements, in the event a relationship ends, will in some cases strain a relationship.
6. Vulnerability – the financially weaker party may feel pressured to agree a clause that limits their rights, to hurry a conclusion to the negotiations. But without full appreciation of the rights being surrendered this would impact the agreement being upheld by the court, should the parties divi.
7. Risk to inheritance – if a party surrenders their right to their intended spouse’s inheritance, but their spouse passes away during the marriage without a will, the surviving spouse will be in a difficult financial position and may have to challenge a division of the deceased spouse’s estate.
8. Legal fees – having an agreement in place can reduce the costs spent on achieving a financial remedy order following the breakdown of a marriage. But if the marriage survives the costs spent on negotiating and drafting the agreement would be lost.
9. In addition, a disadvantage of pre/ post- nuptial agreements are that they could cause one spouse to perceive that the other party does not trust them or that the other party will look to end the marriage.

Conclusion

So while pre and post nuptial agreements appear to interfere with the idea of love and marriage, they are beneficial. Jennifer Lopez could have found herself in a very different position if she was not able to reach a reasonable settlement with Ben Affleck.

How Pinney Talfourd can help

If you are getting married and considering whether a pre or post-nuptial agreement should be drawn up based on your circumstances, please do contact a member of our family team on 01798 229 444 or email family@pinneytalfourd.co.uk.