John Bolch on the popularity of pre-nuptial agreements

Family Law|May 12th 2014

A story in The Telegraph over the weekend stated that divorce lawyers have reported a surge in interest in pre-nuptial agreements, following the recommendation by the Law Commission that they should be made enforceable. One firm alone apparently reported a 50 per cent rise in the number of inquiries about them.

The evidence seems to be anecdotal, but I wouldn’t be surprised if there wasn’t some truth in it.

To recap, in February the Law Commission published its report on Matrimonial Property, Needs and Agreements. The Commission recommended that legislation be enacted to introduce “qualifying nuptial agreements”. These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make contractual arrangements about the financial consequences of divorce or dissolution.

In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met. For example, the agreement must not have been entered into within the 28 days immediately before the wedding; both parties must have made full disclosure of their means and have taken legal advice.

The Law Commission also recommended that qualifying agreements could not be used to contract out of “financial needs”. Accordingly, either party could still apply to the court for a financial order to meet their financial needs.

Now, I’ve never been a great fan of pre-nuptial agreements. After all, nothing says “I love my money more than you” better than a request that your loved one enters into a pre-nuptial agreement. Personally, if that happened to me I would be minded to call the whole thing off.

Clearly, it seems, many are not so deterred and are quite happy to enter into pre-nuptials. Well, they do say that love is blind, but just who are the people that enter into them?

Clearly, the parties requesting pre-nups are those who already possess assets at the time of the marriage, or at least expect to come into assets following the marriage. After all, if you don’t have any assets then there is nothing to protect, and if they think about it most people would probably be happy to share assets acquired during the marriage with their spouse (well okay, ‘happy’ might not be the right word).

Obviously, with a lot of marriages neither party will have any significant assets. This must be especially true for young couples getting married, amongst whom I would imagine there is little call for pre-nups. However, the most recent marriage statistics that I have found (for 2011) indicate that the mean age at marriage has been steadily increasing over the previous 40 years. Thus whilst in 1971 the mean age at marriage was about 28 for men and 25 for women, by 2011 that had increased substantially, to 36 for men and 34 for women. It is probably reasonable to presume that, being older, the parties were more likely to have already acquired assets that they wish to protect with a pre-nup, another reason for an increased interest in such agreements.

Otherwise, I would guess that the greatest demand for pre-nuptial agreements comes from those entering into marriage later in life, or entering into second or third marriages, particularly where they wish to preserve assets for the benefit of children from their earlier marriages. Once again, the statistics indicate that the number of people entering into second or subsequent marriages has increased substantially over the years – yet another reason perhaps for increased interest in pre-nuptial agreements.

So, it seems that the Law Commission’s recommendation is just the latest reason for the increased interest in pre-nuptial agreements. As to whether the recommendation will find its way into law remains to be seen – I understand that the Government is still considering it and that there will be an ‘interim response’ published in August.

Photo by Morgan Harrison via Flickr under a Creative Commons licence

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(8)

  1. Luke says:

    “After all, nothing says “I love my money more than you” better than a request that your loved one enters into a pre-nuptial agreement.”
    =======================================

    On the contrary, nothing says “I love YOUR money more than you” better than a refusal by a loved one to enter into a pre-nuptial agreement. I think that’s just stating the obvious.

    • Stitchedup says:

      Well said Luke. Interestingly, when a woman asks for a prenup she is portrayed as being wise and sensible, when a man asks for a prenup he is portrayed as being mean and unromantic.

  2. annoymous says:

    Totally agree Luke,

    As a man, if my girlfriend has assets i wouldnt hesitate in signing an agreement, as i dont want anything financially from a future wife , as i have my own money.

    In most cases, the default female response to pre nups is always” its not romantic”, but whats actually romantic about signing a marriage contract, which is of course a legal document that women love to sign!

  3. JamesB says:

    I agree with Luke. Although John is trying to be and is being provocative again.

    My pre-nup says basically that if there is any doubt then Scottish law should be used to resolve the situation. I can’t see an issue with this as the law here is bad.

    It depends on the terms on if it is regarded badly, if the terms are too harsh (Tom Cruise, Katie Holmes comes to mind, I think her father regarded the pre-nup as not good) then perhaps it is a little off-putting. In itself the existence of it is not. To sign up to the crazy English and Wales family law is crazy. I think the Nicole Kidman pre nup says the fella gets a million dollars for every year they are married, although I am not sure. They are still together (I think he is an American country and western singer). Marriages and business partnerships seem to be similar into the future with getting together and splitting up being par for the course and to be done as amicably as possible.

    Another point on this, which may partially explain the anecdotal or otherwise increase. In London spousal maintenance orders and terms are higher than anywhere else in the country, per head, perhaps the world. I think to avoid being financially crippled in London would be a fair reason to get a pre nup in London and the England and Wales jurisdiction.

    This post doesn’t really add anything to here so I will make one point. in Scotland, financial relief is 50:50 and spousal maintenance orders are for terms, not lifetime as they can be in England. I believe the most spousal you get in Scotland is 3 years. I have heard it is unusual to get Spousal in Wales and other places in this jurisdiction.

    Anywhere where the potential desolation and battering that happens to so many is possible should be protected against as a form of insurance.

    Its like two respected Premiership teams, say Norwich and Southampton, the managers agree to not have a referee, or appoint some old man who knows nothing about football as a referee, it wouldn’t be right or good. It is better to have more fairness rather than what the Family Law judges in the UK call fair which so many believe is not. I choose my referee to be a Scottish one in this instance. I, like a lot of people in this country do not trust the establishment here.

  4. JamesB says:

    I think the number of children born outside of marriage shows there is an issue with the family law in this country. This should be resolved and family law improved in order to get more people married which would be a good thing.

  5. JamesB says:

    I like that a lot anonymous. I was talking to an official with much experiences of being at signings on that point, and it is right, the men tend to hesitate to sign the marriage certificate more than the women. In my opinion this is probably due to (an appropriate) sense of being in danger.

  6. JamesB says:

    You just reminded me of the conversation, must have been 10 years ago we were discussing, perhaps I need to vary my subjects of conversation more.

  7. The risks behind pre-nuptial agreements - Marilyn Stowe Blog says:

    […] Pre-nuptial agreements are on the rise. […]

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