Wales on Sunday, 19th October 2008
Reports that Madonna didn’t put a pre-nuptial agreement in place before she wed film director Guy Ritchie have shocked a lot of people this week.

Was she so madly in love with him that she just forgot ? Or did she never imagine for one moment that her career would hit the stratosphere and earn her an estimated £300m fortune. Did she also not think that she would ever get divorced from her English beau ?

If so, who can blame her ? Of the hundreds of divorce cases we see every year, clearly no-one makes their wedding vows with one eye on the divorce courts. But if it is right and she does not have a pre-nuptial agreement, then Ritchie stands to become considerably wealthier. Because, whatever the financial outcome, there will be a cross-check against an equal division of assets.

The London-based tabloids have already reported that Madonna has lined up a top London divorce lawyer and QC, which in my eyes means only one thing – she’s read to a court battle to hold onto as much as she can. She doesn’t seem ready to meet him halfway.

In many ways it could be a reversal of the Paul and Heather McCartney divorce – only with the wife looking to preserve as much of her cash as possible.

The simple fact of the matter is that big money divorces such as Madonna’s and McCartney’s are either very straightforward – because there is enough money to give those involved a fair share – or they go to court because one side cannot bear to give their money away.

If it goes to court a variety of factors such as the length of the marriage and the wealth brought to the marriage by Madonna, in particular, will be taken into account.

The court will not take into consideration the sex of the parties and, as the main breadwinner, the likelihood is that Madonna will have to make a settlement to Ritchie.

Madonna will have to maintain Mr Ritchie’s lifestyle, providing him with a home for himself and their children and with an income to live on.

One advantage for Madonna is that her children are still relatively young and it is likely they will live with her. She will therefore not have to pay Mr Ritchie child support. But dragging proceedings through the courts for many months will not reduce Mr Ritchie’s claim.

If my firm were to advise Madonna, we’d be urging her to enter into an agreement, ensuring the settlement is agreed in private. Now of course not everyone has the fabulous wealth of Madonna at stake so, most people think, a pre-nuptial agreement is a waste of time and effort for them. But is it ? Actually, the pre-nuptial agreement is one of the fastest-growing areas of divorce lawyers’ work.

Think about it. Most people would not do anything else in this day and age without having some sort of insurance. So why should something as important as marriage be any different?

Most people shy away from pre-nuptial agreements precisely because they are afraid of being negative about the long-term prospects about marriage; that perhaps the agreement will cast some sort of spell on their love.

What a lot of nonsense. If someone entering a marriage wants to preserve previously acquired assets from the jurisdiction of the divorce courts, i.e if they were wealthier than their wife or husband when they get married then a pre-nuptial agreement should be in place.

The increase in the number of such requests is a direct result of developments such as the McCartney/Madonna factor and the influence of television and the widespread exposure of the UK to US law.

The pre-nuptial agreement is a commonplace part of US matrimonial law but while it does not yet have the same status in the English courts, the present of a “pre-nup” is being increasingly taken into account by the courts here.

The experience of our team is that the dividing up of assets often causes most conflict in a break-up.

A pre-nuptial agreement can help in certain circumstances because it allows both parties to agree on a fair and acceptable division of property, personal possessions and financial assets.

Also, couples considering second, or maybe even third marriages – as in Tom Cruise’s case last year – may have particular reason to consider a pre-nuptial agreement. Having lost part of their capital already through divorce they will be keener to preserve it.

Although pre-nuptial agreements are not yet legally binding in Britain, I would not be surprised if the law begins to accept them increasingly in the years ahead. We are seeing considerable more of them and, as Wales’ largest firm of family lawyers, we’re in a pretty good place to judge.

As I explained, we do seem to be increasingly adopting many elements of US legislation and lifestyle. That means the “pre-nup” is here and is here to stay.

I just wonder if Madonna will regret not putting one in place.