“Prenups and the law are an uneasy marriage”

Relationships|January 17th 2011

From the Opinion pages of the Yorkshire Post, 14/01/2011.

Prenups and the law are an uneasy marriage

By Marilyn Stowe

OVER the past few years, prospective brides, grooms and their parents have come to see us in increasing numbers to ask about prenuptial agreements.

Some are wealthy, some are super wealthy and others are not wealthy at all. What they share are concerns about what will happen if their marriages – or in the case of parents, their children’s marriages – break down. They don’t want any of the family wealth to pass to the divorcing spouses, and they are determined to keep a tight grip on their money.

As a family lawyer, I am a realist who appreciates and will act upon a client’s wish to protect assets or ring-fence family wealth. As a wife and a mother, however, I am not a fan of prenuptial agreements. I would not have signed one, nor married anyone who asked me to as a precondition of marriage. I would not wish to see my son or a future daughter-in-law locked into a prenup, for reasons that I shall explain.

At the time of writing, prenuptial agreements may be upheld in England and Wales – but only at the judge’s discretion. Change, however, is in the air. To great fanfare, the Law Commission, a government-funded body tasked with making recommendations for law reform, has this week published a 150-page consultation document. In it, the Commission sets out “provisional proposals” to give some prenups, those dealing with inherited wealth and preowned assets, automatic force of law.

This development follows the Supreme Court’s decision in the long-running case of Radmacher v Granatino, which involved a German heiress, a £100m fortune, a French former banker and a hotly-contested prenup. The case made headlines last October when eight out of nine Supreme Court justices upheld the agreement and ruled that, provided certain formalities are complied with, a prenup can hold “decisive” weight – even if, as Mr Granatino complained, the agreement seems to be unfair.

Note that the Law Commission’s new consultation document is a lengthy, intellectual and extremely careful recommendation in favour of legally binding agreements. There are few “get out clauses” designed to protect pre-owned assets or inherited wealth – irrespective of fairness, which is the basis of current law.

If these proposals become law, it looks as if the court could intervene to dismiss such an agreement only if insufficient provision was made for the children of the family, or if the weaker spouse was thrown onto the State.

I can understand how, in certain high-profile cases, a binding prenuptial agreement would forestall much of the potential fallout and safeguard dynastic wealth. For example the members of the Royal Family, for all their wealth and privilege, seem peculiarly vulnerable to divorce; indeed, the divorces experienced by certain of the Monarch’s children have been prolonged, unpleasant affairs played out in the public eye.

The marriage and subsequent divorce of Sir Paul McCartney and his second wife, Heather Mills, also come to mind.

In such cases, if significant inherited or pre-owned assets are not used to meet the reasonable needs of the parties during the marriage, I see no reason why, in the interests of fairness, those assets could not be ring-fenced.

Then there are the “everyday” couples who, in an increasingly risk-averse society, simply wish to protect assets in the event of divorce and may benefit if, and when, prenuptial agreements are given automatic force of law. They could include couples who are entering into second marriages, who wish to protect the children from their first marriage.

What is often overlooked, however, is the effect of a prenuptial agreement on the marriage itself. I have seen cases in which a prenup has actually “legally handcuffed” the weaker party to a relationship, and the marriage founders upon increasing resentment. As marriage is an equal partnership, I believe that, generally, it should begin as one – although it is true to say that with or without a prenup, there is no guarantee of a successful marriage.

The bedrock of our family law system is its fairness, exercised through judicial discretion. It can protect the vulnerable from what is manifestly unfair. At present, our family law is not based on a one-size-fits-all approach; instead, each case is treated differently, within the context of each couple’s finances.

A binding prenuptial agreement, which completely ignores this principle, does not sit easily with current law. Yet it seems that, despite this being a non-urgent area of law involving relatively few couples, there is a clear appetite for change. I expect we will see swift, fault-free divorce and tough, uncompromising law enforcing these prenups.

However, I can’t help thinking that the length of time it has taken the Law Commission to produce this consultation document, the length of the document itself, its uncertainties and complexity, all point to one thing. This is the incompatibility of the uncompromising prenup with our current law.

So what next? If new legislation is indeed on the way, it will likely be accompanied by family law reform that is tougher and more radical than any of us could have foreseen.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. JamesB says:

    After much thought, I think the best thing the Government can do should be to do nothing. I cannot see pre nups coming in as we are not American and is a bit too Hollywood.

    At the same time, ‘marriage lite’ as per the CSA and any potential co-habiting law must not be backed as doing so will surely undermine Marriage.

  2. Marilyn Stowe says:

    After much thought I agree with you on the first paragraph.
    After much thought I dont on the second. Marriage in fact will be strengthened if the alternative option is no longer ‘get out of jail free.’

  3. JamesB says:

    Well, we are half-way there ;-).

    Well, if the alternative option is get out of jail free, then I am sure that the Ladies and their parents will put the pressure on to be sure to get married before they get pregnant. If only to ensure the upbringing of their offspring (for e.g. by ‘Xmas orders as per your other recent post), which is the only thing that Marx and the right wing agree on, that marriage is good for that reason.

    If you provide marriage lite (e.g. the CSA), then people will take it, rather than getting married and the commitment that that entails and you have less marriage as a result and that is why, after much thought, I disagree with you on the second point, but hey, at least we agree on the first. Best wishes.

  4. JamesB says:

    The number of marriages will continue to fall as the CSA ‘improves’ and deals with more and more cases ‘effectively’. Effectively undermining marriage for the reasons I say above. That is what has happened in the US, and in Australia, and now here, and for my children I would rather they abolished the CSA and put child maintenance back to the courts as it was before. Then you get more support if you were married before any break-up.

    I know me ex-sister in law in Australia who is upset her partner will not marry her. He will not, because there is already an ‘effective’ child support agency there, and he has already had offspring, and his sucession, so he stands to gain nothing by it.

  5. JamesB says:

    If there is a strong CSA, then there is no need to get married, hence decline in marriage. Something for your Oxford Union debate I suppose where you are arguing that Marriage is an anachronism (I apologise for my spelling).

    Are you arguing that marriage is a thing of the past and history in the Oxford Union debate?

    Do you really beieve in marriage?

    You are allowed to write yes to both questions, I am just interested in your position please. Would also be interested on you posting on the site how the debate goes please.

  6. JamesB says:

    Should probably have said, do you think that people should continue to get married in this country into the future? If so, why?

    Lawyers can argue both sides of an argument, I know, I am interested in where you stand though please.

  7. Lori says:

    Marriage is an antiquated institutio­n. There is no reason on earth to be “married” to another human being. It obviously does not keep people together or there would be no divorce. Whether you are straight or gay, being with someone should be because two people love each other and want to be together. A piece of paper will not guarantee that. If people decide to break up, then that’s what will happen, no matter what. No woman or man should “belong” to another human being through legal papers. I hope someday that marriage is a thing of the past. In my view, marriage is a type of ownership of another human that shouldn’t be in existence. I was married twice, once for 3 years, then for 22 years. I now look back and wonder what the heck I was thinking. I will NEVER get married again and “belong” to someone else. They’re either with me because they love me and I know that, or they’re not, and vice versa. To think that signing a paper and having a “legal” ownership of another human being will keep someone with you, is just crazy. I feel that marriage is a sign of insecurity of a relationship with the thinking that getting married and signing a paper makes that person “yours.” In reality what I realized was that marriage is actually a “smothering” in a relationship. Let’s face it, if someone wants to be with you, NO ONE can take them away from you.

  8. Lori says:

    PS: Did anyone ever stop to think that if it takes a piece of paper to keep someone with you , whether it be for religious, financial or any other reason, that that is the most pathetic reason for one person to stay with another?

  9. Marilyn Stowe says:

    Dear Lori
    Thanks very much for your comments. I am taking part in a debate at the Oxford Union next month debating the proposition The Institution of Marriage is outdated. Your comments will be very useful! If you have anything else to add please don’t hesitate.
    Best Wishes

  10. Prenuptial Agreements on BBC Radio 4 You & Yours - Marilyn Stowe Blog says:

    […] in 2011, I wrote about this topic in the Yorkshire […]

  11. Luke says:

    “What is often overlooked, however, is the effect of a prenuptial agreement on the marriage itself. I have seen cases in which a prenup has actually “legally handcuffed” the weaker party to a relationship, and the marriage founders upon increasing resentment.”

    I think this is the main part where we disagree, I think the opposite occurs and the current divorce rate (driven by women) is hardly backing up the above argument. With a prenup and effectively informed consent everybody knows where they stand going into the marriage. I think this strengthens it.

    What happens in a marriage without a prenup is that the power rests completely with the woman.
    Not only does she get residency of the children, she is also likely to get 60% of all assets (including all assets built up before the marriage and any pension) + child support (to spend any way she wishes) + spousal support – and that spousal support can be for life.

    The power difference between the couple here in my view is quite extraordinary and is like an axe permanently hanging over the male spouse’s head.

    I think if the situation was properly explained to young men then the marriage rate without a binding prenup would drop at least another 50% from its already current low point as only a fool would agree to such terms.

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