If the rumours are to be believed, Ben and Jen (Jennifer Lopez and Ben Affleck for any avoidance of doubt) may be heading for a divorce. The celeb gossip fan in me has been following the story closely, but the family lawyer in me can’t help thinking of all the issues that could arise in this case.
To quote ‘Jenny from the Block’ herself, “Children grow and women produce and men go working, some go stealing, everyone’s got to make a living”. But what if their efforts to do so were pre-marriage and with their first spouse, what impact does this have on the second marriage on divorce?
In our modern world, second, or third marriages or even five collectively for the Afflecks, bring baggage – it is inevitable.
According to the 2019 ONS, 14.7% of marriages were among same-sex couples where both partners were remarrying. I have a feeling this will increase
The later marriage will have happened once the parties are older, at which point there is likely to be children from previous relationships to consider, and their respective wealth, as well as the assets now held in joint names and following their joint endeavours.
What would I be advising my clients looking to marry later in life with blended families and wealth?
First things first – a prenuptial agreement. Clients would no doubt recall how their previous divorced played out and what happened to their finances, and would, I’m sure, be considering what steps they could take to ensure that if the next marriage should not be successful, they have the pre-nuptial agreement to pull out of the draw, blow the dust off and implement. They will appreciate and recognise the cost benefit to them of seeking advice ahead of the marriage and ensuring the pre-nup is as water tight as in can be in our current legal system.
But what if there is no pre-nup, or if there is and one party looks to revisit the terms or argue it should not be upheld, what then?
The question of what is matrimonial and non-matrimonial property is likely to be the first consideration. Herein comes Standish. Mr Standish had made the vast majority of the wealth in the case before the parties’ marriage in 2005. Towards the end of the marriage, he had transferred substantial wealth to Mrs Standish as part of an estate planning arrangement, for the benefit of their children, which was never implemented. The Court of Appeal (Moylan LJ giving the lead judgment with which King LJ and Phillips LJ agreed) upheld the husband’s argument that the source of the funds was the critically important factor to which Mr Justice Moor had given inadequate recognition.
The case reaffirms the importance of the source of the asset and the circumstances of how it was acquired, when assessing a party’s entitlement. Parties must be entitled to the fruits of their partnership, without discrimination. The Afflecks case is not one of needs, but if it were, Standish is unlikely to be argued.
Identifying the assets and the timeline for cases such as this is key, as well as the circumstances surrounding how they are treated by the parties. For example, will the wife argue that despite the husband’s business being in his sole name and generated pre-marriage, had it not been for her efforts in recent years, it wouldn’t be generating the cash it is today? Parties marrying later in life, should be made aware of mingling and the impact this could have.
Are there pensions which have already been subject to a pension sharing order. What then?
Is one party paying maintenance to their former spouse? How will that impact on the new spouse’s claims?
Our social trends continue to change, and with that comes marriages later in life, second marriages, blended families. This keeps us family lawyers on our toes and emphasises the importance of pre-nuptial agreements, so the parties can try to provide certainty on divorce, as much as our current law allows them to.
