The recent engagement of Prince Harry and American actor Meghan Markle provides Family lawyers with much to think about. Amidst the romance and fairy-tale, there are real issues that Harry, Meghan and their respective advisers are considering.
A pre-nup for the prince?
With all the excitement of an engagement and spectacular wedding plans comes a change in how all aspects of your life will be treated. As an unmarried and engaged couple with no children together, the UK Courts will view Meghan and Harry’s finances as very much separate. Currently, in the UK, Meghan has no automatic claim against Harry’s property or assets, despite the fact that she has moved to the UK and left her acting role in TV series ‘Suits’. Similarly, Harry has no right to claim against Meghan’s assets or income here or abroad. However, once married, the position will be very different. As spouses, they will both be entitled to make claims against each other’s income, their property, cash and all other assets. The starting point for a division of capital will be equality. There will be no shortage of wealth in this situation, but the division of assets could still prove contentious if they were to separate.
Both Harry and Meghan have wealth that has accrued before their relationship. Meghan will have assets in the USA and there will clearly be significant Royal family assets that need protection upon marriage. In order to provide clarity, consideration is likely to be given to a pre-nuptial agreement. This agreement, will allow for Harry and Meghan to protect family or pre-owned assets, which would otherwise not automatically be ring fenced. They would both still be able to share in the wealth they accrue together. Any pre-nuptial agreement will need to be broadly fair in its terms, but, if prepared with proper legal advice and with appropriate knowledge of the other’s financial position, it will be upheld in the UK Courts if the couple later divorce. As an American, a pre-nuptial agreement is unlikely to be a foreign concept to Meghan.
Pre-nuptial agreements in the UK are no longer for the rich and the famous. More people marry later in life when they may already own property or businesses. It is important that parties can ensure that these assets can be protected. Others may be entering a second marriage or have children from previous relationships, so are keen that the income or assets are preserved. Proper documentation can provide this certainty for a couple entering marriage. Protection of wealth is all relative, but the considerations are the same; without a pre-nuptial deed all assets and income are subject to sharing. Whilst we may not have the same lifestyle as a princess, you can still protect your pre-owned castle.
Disclosure of finances
Upon marriage, the UK legal system provides that Meghan and Harry will have rights to claim against each other’s income, capital and pensions. If they were to separate and divorce, all assets both here and in the States would need to be disclosed. In the absence of a pre-nuptial agreement, English divorce law will not automatically ring fence any assets or income. However, each party would inevitably have strong arguments in favour of their family or pre-acquired assets. The UK Courts could have difficulties in ordering sales of properties in the USA or outside of the UK, but if agreements are reached in relation to foreign property or assets, those agreements could be approved in the UK.
Even if Harry and Meghan have a long and happy marriage, there are potential private financial matters that may need to be disclosed to outside authorities. The USA has an unusual tax system in that all its citizens, even those residing abroad, have to file expatriate tax returns in the USA. This could be problematic for the Royal family, as their relevant assets and income would need to be detailed in the States. Indeed, she may renounce her US citizenship as a means of avoiding this obligation. If Meghan ever wanted her citizenship reinstated, this could be difficult.
If Meghan does not renounce her US citizenship, the children she has with Harry will also become US citizens (unless they elect to lose this when they become adults). In the event that Meghan wishes to return to the USA, there could be huge ramifications relating to where the children live and how they spend their time. If the children are born and reside in the UK and Harry opposes the children moving away, Meghan would need to make an application in the UK Family Courts to seek permission to move the children back to the USA. If any person applies to relocate their children abroad, the UK Courts will always consider the children’s welfare.
An application to relocate children to the USA, or elsewhere within the UK or abroad, should consider how the children’s ongoing best interests will be met. The UK Courts will look at various factors, such as the wishes and feelings of the children, their specific educational and developmental requirements and the effect of the proposed move on the children. If Meghan could show that the children would maintain a positive relationship with their father, then this would support her move. The fact that both Harry and Meghan have considerable wealth, the ability to travel easily and flexibility over their working commitments, could mean that the children could quite feasible maintain relationships with both parents across the pond.