Is Britney Spears Legally Married? And If So, Is Her Prenup Enforceable?

Last January, Britney Spears made headlines when, on a whim, she married her childhood friend Jason Alexander in Las Vegas. Fifty-five hours later, the two had the union annulled. Afterward, Britney told a New York Times reporter, "I do believe in the sanctity of marriage, I totally do. But I was in Vegas and it took over me."

Eight months later, Spears invited friends and family to her second wedding, to back-up dancer Kevin Federline. Prior to the ceremony, the couple apparently negotiated a prenuptial agreement. In addition, they claim they obtained, but did not file, a marriage license.

The ceremony was planned for October 16. But in the end, the couple actually took their vows on September 18. (The couple suggested the reason for the date change was that they'd been hounded mercilessly by the press.)

Later, a website - The Smoking Gun - posted what the site claimed was a contract between Britney and Kevin notarized September 16, two days before the ceremony. (I will assume, for purposes of this column, that the document is genuine.) In the contract, the couple agreed they would participate in a "faux" wedding on September 18, but would not take vows as husband and wife. It also stated that they "do not intend to and shall not validly marry one another on said date."

So what, exactly, is Britney and Kevin's legal status now? Are they legally married? If so, does the prenuptial agreement apply? What difference, if any, does this "faux marriage" contract make?

Are Britney and Kevin Legally Married?

To begin, let's put the "faux marriage" contract aside for a moment. Otherwise, are Britney and Kevin married? Or is it a problem if, as they claim, they had a license, but failed to file it?

The answer is that it's not a problem: In California, couples need not have previously filed their marriage license to be legally wed.

To be valid under California law, a marriage requires the consent of the parties, the issuance of a license, and - within 90 days after the license's issuance -- solemnization by an authorized official. (California does not recognize common-law marriages, which are formed in some jurisdictions when a couple declares their intent to be married but does not have their union solemnized or licensed.)

Here, the parties consented when they said "I do." They claim that a license was issued. And the ceremony to solemnize the marriage occurred. Thus, if we believe Britney and Kevin, all the requisite California steps were taken, and they are legally married.

According to the statute, after the solemnizing ceremony, the celebrant (clergyperson or governmental official) is supposed to return a "Certificate of Marriage" to the state. There has been no report, here, that this was ever done. But the statute makes clear that if a "nonparty" to the marriage - such as the celebrant -- fails to satisfy the statute's requirements, the marriage will still be valid.

For all these reasons, it seems that - putting the "faux marriage agreement" aside - Britney and Kevin are legally married.

If Britney and Kevin Are Legally Married, Is Their Prenup Valid?

If Britney and Kevin are legally married, however, their prenup may not be valid.

Ideally, a prenup must be signed before a marriage occurs - hence, the name. To be valid, every contract requires what the law calls "consideration": a thing of value, given in exchange. In a prenup, the consideration is marriage: Here, for instance, the idea would be that Britney would marry Kevin in exchange for his signing the prenup. He would sign; she would say "I do"; and the contract would be effective.

But under California law, a party cannot validly sign a prenup until seven days after he is "first presented" with it, and advised to seek independent legal advice. And it appears that here, the seven-day waiting period never occurred

Circumstantial evidence from the "faux marriage" agreement suggests Kevin probably wasn't first presented with the prenup until September 18 - and thus that he could not have validly signed it until seven days later, on September 25, after the marriage occurred.

(The evidence is this: In the agreement, the parties declared their intent not to marry without a prenup. They also declared that they would not fulfill a key condition of marriage - obtaining a license - until September 25. Thus, they seem to have anticipated that the prenup would not be signed until September 25, either.)

In that case, the prenup wouldn't be a prenup - but a postnup. And the law takes a dim view of marital partners attempting to change how the marriage, divorce, and alimony laws will apply to them once they are already married. Thus, the prenup - really not a prenup at all - would be invalid.

Does an Agreement to Stage a "Faux" Wedding Void the Marriage?

But what about the "faux marriage" agreement? It's hard to say what effect it will have. That's because, as a friend of mine remarked, "there's no such animal in the legal zoo." An agreement to have a fake wedding is hardly a standard contract. Indeed, it's unheard of.

The reason this odd creature seems to have cropped up here is that Britney and Kevin wanted to have a ceremony, and wanted their prenup to be valid -- but they didn't want to wait the seven days until the law said their prenup would be valid.

So Britney and Kevin tried to have their wedding cake and eat it too: They tried to arrange to have a fake wedding, and then (presumably) to have a real wedding later, after the seven-day waiting period had elapsed.

But in the event, they seem to have changed their minds - getting the license they promised not to get, and taking the vows they promised not to take. (Friends and relatives who attended the wedding seem to support the notion that the marriage was solemnized and the couple did state wedding vows. And, as noted above, Britney and Kevin both have affirmatively stated that they obtained a marriage license prior to the wedding.)

Given these breaches of the "faux marriage" contract by both Britney and Kevin, a court might well throw the "faux marriage" contract out the window. And even a court that was not especially worried about these breaches, might be very worried - and conflicted - about the effect of the "faux marriage" contract itself.

Typically, contracts are construed to effectuate the parties' intent - and here, their intent, as expressed, in the contract, was to not get married. So a court simply looking to the parties' intent, as expressed in the contract, would conclude that Britney and Kevin are not married.

But it's not that simple: Contract principles do not obviously apply to civil marriages, which are unique three-way agreements between two spouses and a state.

California marriage statutes are in the mix here, too. And it appears - as noted above - that Britney and Kevin fulfilled all the California law prerequisites to be married.

So the question is really: When a statute says that two persons are married, can a prior contract between them contradict the legislature, and say that they are not? Or put another way, would enforcing this contract contradict public policy - because public policy says that consent plus a license plus a ceremony equals marriage?

The Consent Issue - and Whether It Matters

Finally, here's another wrinkle: Was there ever consent to marry here in the first place? Remember, if there was no consent, then under California law, there was no marriage.

Arguably, before they said "I do," the parties had agreed it would mean "I don't." And in contract law, a written agreement usually trumps contradictory oral statements. So if contract principles were applied here, the agreement not to marry might negate the oral "I do"s.

But again, contract law is not marriage law: The state, too, is a party here. And again, California statutes are in the mix: They arguably suggest that consent is to be judged by voluntary "I dos," and that the later fate of the marriage is to be governed by the state, not the parties' contract.

After all, the usual means for declaring a marriage invalid from the outset is an annulment proceeding - not a proceeding to enforce a "faux marriage" contract! And lack of consent alone is not enough.

Here, suppose the "faux marriage" agreement were taken to suggest lack of consent - despite the later "I dos." Even so, lack of consent is only a ground for annulment when it is the product of fraud, force, or mental incapacity. None of these appear to have been present here.

For all these reasons, the statute governing the nullification of marriages does not seem to apply here. Thus, if Britney were to seek an annulment of her marriage to Kevin, she might fare poorly - and be forced to seek divorce instead.

(In addition, if Britney merely began to claim publicly that there was no marriage, Kevin could bring a proceeding to have its validity "determined and declared," and because of the consent, the solemnization, and the issuance of the license, he would probably win.)

If the Prenup is Invalid, How Much Will Britney Pay in a Divorce?

If the couple did divorce, what would happen?

California, like most other states, permits divorce virtually on either party's demand. But Britney might find that divorce would come at a high cost. Because remember, if her marriage is valid, then her prenup probably isn't - for the seven-day waiting period never elapsed.

Britney's earnings during the marriage--as well as Kevin's--would be presumptively split equally between the parties, under the rules of community property. Her premarital assets should not be vulnerable -- but there are circumstances under which a court might order that some of them be used to support him.

The bottom line is this: With the kind of money she earns, even a short-lived marriage could result in a significant loss for her. And at the moment, she is not fully protected against such a loss - for it seems she validly married before she had a prenup in place.