To have and to hold…subject to the terms of our pre-nup

I have a confession to make: following the recent engagement between Taylor Swift and Travis Kelce, my first thoughts were about the pre-nuptial agreement that is bound to ensue. That’s not me living up to the stereotype of being a heartless lawyer, it’s my intellectual curiosity at how challenging it will be for the legal teams tasked with drawing up such an agreement. Allow me to explain.

A pre-nuptial agreement (or pre-nup) is a contract entered into by a couple before they get married. The pre-nup sets out what assets each partner will receive in the event of them separating or getting divorced. There are a number of conditions that need to be met before the Courts in England will consider a pre-nuptial agreement (unlike in America, they are not set in legal stone on this side of the pond).

First, is that the agreement has to be signed before the marriage. Yes, the clue is in the name, but you’d be surprised at the number of people who think they can enter into a pre-nup after the big day. More on this later. The second condition is that both parties must make a full disclosure of all their assets. If you don’t declare assets, then this failure could potentially undo the agreement. The Appeals Court has recently ruled such in a case between Jenny Helliwell and Simon Entwistle. This couple signed a pre-nup agreeing that, in the event of their marriage ending, each would walk away with just the assets that they had brought to the marriage. In Helliwell’s case this was assets of around £66 million. For Entwistle, just £400,000. Mr Entwistle’s appeal was based on the fact the Helliwell had only declared around £18 million of her assets in the pre-nup.

Along with all the mansions and cars and jewelled costumes, a star of Taylor Swift’s stature has numerous intangible assets or intellectual property. Not least is herself and the influence she has over her fans. Just uttering the words “I love Brand X perfume” would have the Brand X perfumery on 24 hours shifts to meet the increase in demand. Similarly, as soon as Taylor Swift picks up her guitar in a recording studio her wealth increases before the song is released. Ensuring that these assets are declared and valued fairly will be a challenge, but something that is common with people whose wealth is tied to their intellectual property. An interesting situation arises if, at some future date, Taylor Swift decides to sell the rights to her back catalogue. Just like having, for example, three houses at the time of signing a pre-nup and later selling one of them, this would require a post-nuptial agreement to take into account the new situation. A post-nup does not have to be a modification of a pre-nup. You can enter into a post-nup even if you didn’t agree a pre-nup.

Pre- and post-nuptial agreements still carry a stigma for some people. Why make the vow “Till death us do part” if you also have a legal contract as your backup plan? Such agreements aren’t always created to protect the wealthier party. They can also be a show of “what’s mine is yours” set out in legal terms. Only you and your partner can decide if a pre- or post-nuptial agreement is right for you. At Pilgrim Hope Solicitors we are here to explain things in a clear and unbiased way to help you decide.

If you would like to arrange a free 30 minute discussion of your Family law needs, call us on 01257 422 500 8.00am to 9.00pm Monday to Friday, and 9.00am to 7.00pm on weekends.