Marriage in black and white

So it seem that the world’s most famous bachelorette – Jennifer Aniston – is on the verge of marrying fiancé Justin Theroux. But, or so say the stories, she won’t marry the actor and screenwriter until he has signed a prenuptial agreement.

The Daily Star quotes a source saying: “Jen’s thrilled to be getting married but she’s leaving nothing to chance. She wants to make sure all her assets are protected, especially with her track record with men.”

Prenuptial agreements are no longer the exotic beasts they once were. Nowadays they are an almost expected fixture of the celebrity wedding and marriage amongst the wealthy. But what about the rest of us? Do they have any relevance to those of us who aren’t multimillionaire film and TV stars? The answer is yes. Prenups certainly make sense when significant assets are at stake but they are also an informed precaution in any relationship with a significant degree of risk – for example, international relationships.

So what exactly are they?

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Prenups are agreements signed by both parties before a marriage or civil union setting out in black and white exactly what will happen if the relationship breaks down and the couple go their separate ways. They are usually focused on the ‘assets’ (money, property, possessions) held by the two parties and set out exactly who will get what. But prenups can also define any conditions surrounding the support of one party by the other, and even specify the loss of certain assets in the event of adultery!

Postnuptial agreements are very similar, except these, as the name suggests, are signed after a marriage or union has taken place.

The pre- (and postnuptial) agreement is a concept which originated in other countries and inevitably English law has taken its time catching up with the idea. Prenups had no legal validity in England until 2010, when, thanks to a test case involving German heiress Katrin Radmacher and husband Nicholas Granatino, it was established that these agreements can be given “decisive weight” in a divorce settlement provided certain conditions are met, namely:

• That both parties fully disclose their financial assets
• That they are signed voluntarily and without duress
• That they are signed a reasonable time before the wedding
• That the two parties have been legally advised
• That they provide for each partner’s needs

‘Needs’ implies that the settlement must be reasonable, without necessarily being generous or excessive.

This perhaps complex set of conditions still, of course, leaves pre- and postnups in a hazy legal area, uncertain and open to interpretation. However, as regular readers of this blog will know, significant change could well be on its way: the Law Commission is currently considering both pre- and postnups and whether these should be made automatically legally binding, provided they meet the conditions above. We may see draft legislation as soon as autumn next year.

I strongly suspect that pre- and postnups will become almost routine in this country if they do eventually become legally binding. Many people still view them as fundamentally unromantic and I can see their point: it is indeed hard to ask someone to sign one. That signature on a dotted line seem almost to be predicting failure before a marriage or union has taken place. But I think over time this perception will shift into a more realistic assessment of the prenup as a hard-nosed but sensible precaution. I have seen hundreds of clients over the years who never thought their fairy tale marriages would come to an end. They still did