It appears that I’m not the only one with strong views about pre-nuptial agreements. The FT Weekend Magazine interviewed me for its lengthy cover story on this controversial subject, published this weekend.
The spoils of war
By Richard Tomkins
Pre-nuptial agreements may lack romance, but at least they make divorce a less messy business. That’s the theory, at any rate – the problem is that English law is almost unique in refusing to recognise them. Isn’t it time we made breaking up easier to do?
(Extract) Pre-nups may seem the ideal solution to the vagaries of the English divorce system, and Resolution, which advocates a non-confrontational approach to divorce, is strongly in favour. But not everyone is as enthusiastic. The most common criticism is that pre-nups are “unromantic” because two people who really love each other don’t go into a marriage wondering whether it will last. The Church of England says: “Christians believe that marriage is a gift from God. In the marriage ceremony, the couple make a public declaration of a life-long commitment to love one another, come what may. To anticipate a marriage’s breakdown before it has even begun completely undercuts its Christian basis.”
Marilyn Stowe, a high-profile divorce lawyer with her own firm, Stowe Family Law, says strains may arise where, as is typically the case, the pre-nup is imposed by an economically stronger partner on an economically weaker one. “Personally, I wouldn’t marry a person who wanted to impose one on me,” she says. “If you knew that your spouse, whom you were supposed to trust 100 per cent, had imposed that on you, wouldn’t it affect the marriage from the beginning? And if the agreement was for a period of years before it came up for review, wouldn’t you be thinking about what was going to happen at the end of that period – whether you were going to be chucked out?
In spite of her personal views, Stowe has drawn up many pre-nups for her clients and has no objections to them in principle. She does, however, object to the idea that they should become legally binding. At the moment, she points out, although the courts will look at a pre-nup, they will not be bound by it; instead, the burden of upholding it falls upon the party who stands to gain most from it. “And I think that’s fair, because if the person who wants the pre-nup and stands to benefit from it still has to persuade the court that it’s fair and reasonable, then that strikes the right balance. If you reverse that burden, then it becomes doubly unfair to the recipient.”