The media are currently lamenting the breakup of celebrity couple Ben Affleck and Jennifer Lopez, ‘known as ‘Bennifer’ after Lopez filed for divorce earlier this week, exactly 2 years after their wedding. Their combined estimated net worth is rumoured to be over $600million, including a joint property in Beverly Hills worth over $60.8million. They didn’t have any children together (though both have children from previous marriages). Insiders say that they didn’t sign a prenuptial agreement. So many will be wondering what their divorce is going to look like.
In this blog, we’re going to imagine that Bennifer are based in England and Wales and that they are divorcing here too. How would the English courts approach their short marriage and extreme wealth?
The sharing principle
Firstly, the court must ensure that any financial settlement meets the needs of the party. If there are sufficient assets to meet each party’s needs and there are surplus assets beyond that, then they will consider the sharing principle.
Based on the cases of White v White (2000) and Miller and McFarlane (2006), the sharing principle holds that parties are equal in marriage and should therefore share in ‘the fruits of the matrimonial partnership’ (compared to just having their needs met). This will generally mean that when dividing assets, the starting point will be 50-50.
In 2017, the case of Sharp v Sharp limited the sharing principle in the case of short and childless marriages by finding that in these types of marriages, it may be fair to depart from the sharing principle. But in the case of E v L in 2021, the court found that there was no reason why childless marriages should be treated any differently to long ones- having a child does not show more of a commitment than not having one. As to the length of the marriage, the court found that assets would have accrued within a short marriage just as they would have done in a longer one, and the sharing principle should apply equally. But inevitably, fewer assets would have accrued in a short marriage (and therefore fewer assets available for sharing) than in a longer one.
There is also the concept of ‘matrimonialisation’ to consider which has been reaffirmed and limited only earlier this year. Matrimonialisation is the principle that actions taken during a marriage can turn assets that are in one person’s sole name into marital property. A good example of this may be where one party sells a business and uses the proceeds to fund the lifestyle of the parties.
So, what would that mean for English Bennifer?
Well, there will be some assets that have clearly accrued during the marriage that will be subject to sharing - for example, their joint Beverly Hills property and the contents of that home. But the likelihood is that they both brought substantial wealth into the marriage that didn’t get mixed into the marital pot at all. If that is the case, there is an argument to say that these assets should not be subject to the sharing principle as they were not accrued during the marriage itself and were not ‘matrimonialised’ within the marriage. This is where the arguments may lie.
Matrimonialisation isn’t a clear black and white concept. There will be some assets that may be easier to ringfence than others (assuming the parties’ needs are met). For example, if Affleck had a property that he bought prior to the marriage, that he and Lopez never lived in and that he didn’t do anything with in the two years of the marriage, then he’s likely to be successful in arguing that it should be excluded from any sharing. But what about a bank account that Lopez may have held, that she used to fund the parties’ lifestyle together? Should this become matrimonial in its entirety, or did only the withdrawals become matrimonial? This may well be an argument they have as it is rumoured that Lopez funded much of their life together including holidays and private jets.
Would have a prenup helped?
A prenuptial agreement could have set out how some of these assets would be dealt with on divorce, including an agreement that certain assets would not be shared. But as they did not sign one, who knows how their divorce will pan out.
Prenups are often associated with celebrities and the wealthy who want to protect their assets in case of a divorce. However, our recent research shows that prenups are becoming more popular among younger generations who believe they should be mandatory for all those who tie the knot.
If Bennifer's split is amicable and their needs are met, they may decide to simply agree how to divide their assets. Whatever happens, the media are sure to keep us updated.
If you have any questions about the topics raised in this blog, contact our specialist family and children lawyers to find out how we can help.
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