Family Law solicitor, Paul Jordan, assesses the growing importance of pre-nuptial agreements
In a recent survey of specialist family solicitors, almost 70% predicted a rise in people seeking advice on a pre-nuptial agreement, or ‘pre-nup’, before tying the knot.
They were once regarded with scorn as an American fad, but with celebrity divorces grabbing the headlines, the rise and rise of the pre-nuptial agreement is hardly surprising.
Stuart Sangster, ex-husband of serial divorcee Sue Sangster, had one – though not all celebs are as canny; just ask the reasonably well-known former husband of Heather Mills.
Over 80% of specialist family solicitors polled took the view that in the right circumstances a pre-nuptial agreement can be an effective way to protect assets in divorce (or civil partnership dissolution proceedings). Legally a pre-nuptial agreement is no more than an arrangement entered into before marriage (or civil partnership) to attempt to regulate a couple’s financial affairs in the event of divorce. They used to be likened to having an inflatable lilo in the middle of the ocean: It might not save your skin (or in this case your bank balance) but it’s better to have one than nothing at all.
However, the future prospects of the pre-nuptial agreement have been given a boost by court decisions that appear to have upgraded the lilo to a life raft. As always, whenever a pre-nuptial agreement is tested, the court’s decision will be fact dependent. The Court of Appeal has said that in the right instance the existence of a pre-nuptial agreement could be given “decisive weight”.
Even though not a sure-fired life (or bank balance) saver, in appropriate cases it will still be sensible to consider entering into a pre-nuptial. The (literally) million dollar question in some circumstances is whether it will be “for richer or for poorer” if you don’t have one?
The courts have accepted that pre-nuptial agreements are not exclusively for the “super rich” and as they move into mainstream law the judge’s task is to strike a fair balance between the right of the individual to autonomously regulate their financial affairs, whilst allowing the court to retain its overriding duty to achieve fairness when redistributing assets on divorce and civil partnership dissolution.
So, we have not quite caught up with the United States and parts of Europe; yet. For the time being at least, the law in England and Wales remains that pre-nuptial agreements are not legally enforceable ‘as of right’. Nevertheless the existence of a pre-nuptial agreement is a factor which the courts are increasingly ready to consider, so whether it be a lilo or a life raft, anyone setting out on the high seas of matrimony would do well to consider taking one along, just in case the going gets rough.