Britney Spears and Sam Asghari's divorce is making headlines, and it looks as if it could be a messy one.

Sam has filed for divorce amid cheating rumours, but it seems that Britney’s $60m fortune is well protected. The couple reportedly entered into a prenuptial agreement before their wedding in 2022, which entitles Sam to $1m per every two years of marriage, capped at $10m after 15 years. However, they have only been married for 14 months. Sam had previously joked about the prenup on Instagram, saying that it was to protect his jeep and shoe collection if Britney ever left him.

The prenup is said to extensively ring-fence all of Britney’s premarital wealth, and there are many reports that Sam has threatened to release “extraordinarily embarrassing information” about Britney unless she renegotiates the terms of what he himself described in 2021 (at the time of their engagement) as an "iron-clad prenup". However, his spokesman has today denied these claims. 

Whilst all of this is playing out in America, it is interesting to consider what might happen if it were in this jurisdiction.

Are prenups binding? 

In this jurisdiction, nuptial agreements are not legally binding, but over the years they have been given increasing weight by the courts of England and Wales, following the 2010 decision in Radmacher v Granitino.

Nuptial agreements can provide protection for either spouse who wishes to ring-fence non-matrimonial assets such as property, family inheritance or gifts given prior to the marriage.

Provided that the agreement was:

• entered into freely,
• there was full financial disclosure and independent legal advice, so that each party understood what rights they were potentially giving up, and
• it was signed in good time before the date of the wedding

the agreement is very likely to be upheld by a court in the event of a marital breakdown unless it is considered unfair to either party.

What are the grounds for challenging a prenuptial agreement in England and Wales? 

Below are some of the instances when a nuptial agreement may be challenged during divorce or dissolution proceedings in this jurisdiction:

• If the nuptial agreement was obtained under fraudulent circumstances.
• If one party was forced to sign the nuptial agreement under duress. Timing is important here – if the prenuptial agreement is signed in the weeks before the wedding date, this can suggest improper pressure.
• If the nuptial agreement was signed when one party lacked capacity.
• If the agreement is fundamentally unfair – i.e. if leaves one person at a significant financial disadvantage.
• If one party argues that they did not understand the terms of the agreement or what they were effectively giving up. Whilst obtaining independent legal advice is not mandatory, it helps to ensure that both parties understand the nature and terms of what they are agreeing to.
• There has been material non-disclosure. 
• If, after the creation of the nuptial agreement, there is a significant change of facts and circumstances. Examples of relevant changes in circumstances include: the birth of any children to the family, a loss of employment, if your spouse started a profitable new business during your marriage, and if your spouse came into a windfall or accumulated additional property or assets.

Provided that the terms of the agreement are substantially fair, and the needs of the parties and any children can be met, the court is increasingly willing to give weight to nuptial agreements.

We wait to see whether Sam tries to challenge the terms of his prenup and what lawful grounds he might argue in America.