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  1. Law
September 23, 2011

No puedes comprarme amor, or Can’t buy me love

By Spear's

What do Spain’s most titled woman and one of Liverpool’s best-loved sons have in common? The answer, say Annmarie Gosling and Alvaro Iraizoz Reclusa, is they’ve found a way to reconcile love and money
 
 
WHILE DIEHARD ROMANTICS would have us believe that true love is blind and is untainted by finances or prestige, the more cynical amongst us may well take a more nuanced view. Indeed, it is no secret that those two common bedfellows, power and money, often prove to be the most potent aphrodisiacs of all.

Therefore, many of us may be eating our proverbial hats given the recent steps taken by Spain’s Duchess of Alba, the most titled aristocrat in Europe, prior to her wedding this October to civil servant Alfonso Diez Carabaotes. (Her full name is María del Rosario Cayetana Paloma Alfonsa Victoria Eugenia Fernanda Teresa Francisca de Paula Lourdes Antonia Josefa Fausta Rita Castor Dorotea Santa Esperanza Fitz-James Stuart, Silva, Falcó y Gurtubay. Her titles can be found below.)

The colourful Duchess has signed away her wealth to her six children in what has been dubbed by the press as a ‘family pre-nuptial agreement’, demonstrating that the marriage is for love not money.

The Duchess reportedly signed her children’s inheritances over to them prior to her death by registering them as the owners of her various palaces, property and castles on her death. This means that while the Duchess will retain control of the House of Alba during her life, her children’s rights on her death are assured in advance.

Prior to this, the Duchess’s intention to marry Senor Diez had reportedly been a matter of some controversy amongst her six children from her first marriage to Luis Martinez de Irujo y Artacoz in 1947 (dubbed ‘the most expensive wedding in the world’). The children and the Duchess’s eight grandchildren were apparently concerned at the prospect that the marriage would mean that a substantial part of her estate could pass to Senor Diez on the Duchess’s death.

To put matters into context, the Duchess’s wealth is estimated at somewhere between £524 million and £3.5 billion. This fortune is made up of various palaces, property and castles around Spain. Her wealth also lies in stocks, arts masterpieces and works of literature classified as Spanish national heritage. Many of her belongings including thousands of pieces of artwork and volumes of literature in the Palacio de Liria is in the hands of the House of Alba Foundation, and cannot be sold off without the permission of Spain’s Culture Ministry.
 
 
IN A COLDER country, a Beatle is apparently contemplating something similar. If newspaper reports are to be believed, England’s own Sir Paul McCartney is no stranger to familial discord over a choice of spouse although there is no such suggestion in relation to his current fiancée, Nancy Shevell, an American heiress. Sir Paul is expected to marry for a third time shortly, having posted notice of the wedding at Marylebone Register Office.  

Despite Sir Paul’s acrimonious multi-million pound divorce from Heather Mills, he has reportedly remained steadfast in his refusal to enter into a pre-nuptial agreement. However, they have apparently agreed that Ms Shevell will sign a short legal document, relinquishing her right to make any claim on the trust funds of Sir Paul’s children and grandchildren.
 
These high profile cases demonstrate two different approaches to financial planning by high net worth individuals. Indeed, a simple document such as the one signed by Ms Shevell may be an approach worth considering, particularly if a prenuptial agreement seems too commercial a bridge to cross for love-struck couples.

However, given the family courts’ wide powers to distribute the finances and assets of divorcing spouses, it is highly unlikely that such a document could render such trusts sacrosanct and untouchable by the courts in the event of a divorce, although it would of course be taken into account.

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Indeed, financial planning with regard to one’s estate is not a new concept. However, in England, people enjoy total testamentary freedom and can distribute the entirety of their estate in their Will as they wish (subject to any claim under the Inheritance (Provision for Family and Dependants) Act 1975, although this Act only applies if the deceased is domiciled in England and Wales).

In contrast, in Spain, there is a substantial portion of a testator’s estate which the Duchess would not have the freedom to dispose of as she wished, known as the ‘legitima’. About two-thirds of a testator’s estate is designated as ‘legitima’ and passes to the testator’s children automatically under the rules of forced heirship. Also, under Spanish inheritance rules, the Duchess’s widower, Senor Diez, would acquire a life interest (known as a right of usufruct) over at least one-third of her estate.

In England, a wealthy testator may well wish to release details of their Will while they are still alive, perhaps in order to reassure their children of their future inheritance. However, given that marriage invalidates a Will in England, they would need to wait until after the marriage to do so. In addition, given the wide powers of family courts to vary ante- and post-nuptial settlements in financial proceedings on divorce, again this would not necessarily mean that such funds would be untouchable, particularly if the other spouse can demonstrate a real need for them to be given access to such funds, which could not be met from another source.

While parties cannot totally exclude the remit of the court in the event of a divorce, it seems they will continue to try various ways to curb the exercise of its discretion. The extent to which the courts will countenance this will depend on all the circumstances.

In any event, the above are demonstrations of two alternative approaches to pre-nuptial family planning in action, leaving the enamoured parties to proceed with their respective nuptials without having to contend with family feuds.  

Annmarie Gosling, Farrer & Co LLP, London
Alvaro Iraizoz Reclusa, Zarraluqui Abogados de Familia, Madrid

According to Wikipedia, the Duchess’ full titles are:

Dukedoms

    * 18th Duchess of Alba, Grandee of Spain
    * 17th Duchess of Híjar, Grandee of Spain
    * 15th Duchess of Aliaga, Grandee of Spain -Ceded to her son Don Alfonso Martínez
    * 11th Duchess of Montoro, Grandee of Spain -Ceded to her daughter Doña Eugenia
    * 11th Duchess of Berwick, Grandee of Spain
    * 11th Duchess of Liria and Jérica, Grandee of Spain
    * 3rd Duchess of Arjona, Grandee of Spain

Countship-Dukedom

    * 12th Countess-Duchess of Olivares, Grandee of Spain

Marquesates

    * 17th Marquesa of the Carpio, Grandee of Spain
    * 10th Marquesa of San Vicente del Barco, Grandee of Spain -Ceded to her son Don Fernando
    * 16th Marquesa of la Albaga
    * 16th Marquesa of Almenara
    * 18th Marquesa of Barcarrota
    * 10th Marquesa of Castañeda
    * 23rd Marquesa of Coria
    * 14th Marquesa of Eliche
    * 16th Marquesa of Mirallo
    * 20th Marquesa of la Mota
    * 20th Marquesa of Moya
    * 17th Marquesa of Orani
    * 12th Marquesa of Osera
    * 14th Marquesa of San Leonardo
    * 19th Marquesa of Sarria
    * 12th Marquesa of Tarazona
    * 15th Marquesa of Valdunquillo
    * 18th Marquesa of Villanueva del Fresno
    * 17th Marquesa of Villanueva del Río

Countships

    * 27th Countess of Aranda, Grandee of Spain
    * 22nd Countess of Lemos, Grandee of Spain
    * 20th Countess of Lerín, Grandee of Spain, Constabless of Navarre
    * 20th Countess of Miranda del Castañar, Grandee of Spain
    * 16th Countess of Monterrey, Grandee of Spain
    * 20th Countess of Osorno, Grandee of Spain
    * 18th Countess of Palma del Río, Grandee of Spain
    * 12th Countess of Salvatierra, Grandee of Spain -Ceded to her son Don Cayetano
    * 22nd Countess of Siruela, Grandee of Spain -Ceded to her son Don Jacobo
    * 19th Countess of Andrade
    * 14th Countess of Ayala
    * 16th Countess of Casarrubios del Monte
    * 16th Countess of Fuentes de Valdepero
    * 11th Countess of Fuentidueña
    * 17th Countess of Galve
    * 18th Countess of Gelves
    * 16th Countess of Guimerá
    * Countess of Modica (Kingdom of Sicily)
    * 24th Countess of Ribadeo
    * 25th Countess of San Esteban de Gormaz
    * 12th Countess of Santa Cruz de la Sierra
    * 11th Countess of Tinmouth
    * 20th Countess of Villalba

Viscountcies

    * 12th Viscountess of la Calzada

Baronies

    * 11th Baroness of Bosworth

Manorials

    * 29th Lady of Moguer

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