Prince Harry is of course due to marry Megan Markle today. The public’s gaze quite rightly will be firmly focused on the occasion – the ceremony, guests and dresses. However, questions over whether they are entering into a pre-nup have already begun to surface.
Such agreements are not known to have been used before now in relation to any Royal wedding, however given the age of the pair, coupled with the company they keep and the obvious overlap into celebrity, it is more than likely this will have been looked at. Of course, the nature of such agreements is that they are very often agreed to be confidential so one would be extremely surprised were it ever made public that one had been prepared.
Prenuptial agreements are very much commonplace in the United States and, depending on the State where any divorce might occur, they can be held as binding. In England and Wales, such agreements carry significant persuasive weight if they are correctly drawn up and entered into, but they are not strictly binding. In order to carry the maximum weight possible it is important that such agreements are drawn up with both the husband and the wife each receiving independent legal advice. There needs to be full financial disclosure given by both parties. There can be no undue influence – that is to say one of the parties pressuring the other to enter into the agreement. There is also a need for the agreement to be executed at least 28 days before the wedding if it is to carry the maximum weight possible.
In the context of the Royal wedding, one would expect Ms Markle’s financial position to be relatively straight-forward. The position in relation to Prince Harry is of course a little more complicated, given not only the assets in which he currently has an interest, but also the broader wealth that underpins his Royal status and to which he may become entitled in the future. When drafting agreements, future entitlement is something that is often referred to in some way. The reason for this is so there can be no suggestion that this future entitlement and its significance is not something that wasn’t known about at the time the couple entered into the agreement. Of course, Harry’s prominent status as a member of the Royal family would make it very difficult for Ms Markle to not already known about! The agreement would however need to address it in some way.
Prenuptial agreements often sub-divide the assets a couple have into separate and non-separate property. The intention is very often that separate property will be protected where is the non-separate (or joint) property will be shared. It is quite common to have a gradual erosion of separate property so that over time it slides into the category of non-separate property, either at agreed intervals or on a straight line basis. In might be in the context of a royal prenuptial agreement that additional provision or status is included as an entitlement the longer the marriage endures.
This is all speculation however. If there is an agreement and everyone involved in its preparation keeps to their word it ought to be something that never comes to light and, hopefully, never needs to be relied upon.
Andrew Barton is a divorce, prenuptial agreement specialist and family law partner at Stephens Scown. He was recently included in the Citywealth Leader’s List, a list of the best advisors in private wealth in the world. To contact Andrew about pre-nup loyalty clauses or any other family law matter, please call 01392 210700, email solicitors@stephens-scown.co.uk.