Marilyn Stowe’s expert guide to the legal and emotional minefields of divorce and separation has now sold 8,293 copies.
Divorce & Splitting Up: Advice from a Top Divorce Lawyer was written to provide everyday readers with clear, straightforward advice about how to approach a notoriously difficult set of circumstances. It offers essential information on the legalities of divorce and separation, as well as advice about how to approach the more personal dilemmas you may face.
One hundred per cent of the proceeds from the book – now in its second edition – are donated to the Children’s Society.
In this extract, Marilyn examines the pros and cons of prenuptial agreements.
I do not like the concept of prenuptial agreements, do not believe they are “socially necessary” and do not believe that they should be automatically legally binding. I would not have signed one myself, nor married anyone who asked me to as a precondition of marriage.
That said, I field a number of enquiries about prenups, both from clients who are due to marry and want to protect pre-owned or inherited assets, and clients who are due to divorce. The latter usually wish to know if their prenups will be upheld. The answer isn’t always straightforward.
In 2010 a landmark decision was made by the Supreme Court in Radmacher v Granatino: a case involving a German heiress and her former husband, a Frenchman. The couple had signed a prenuptial agreement in Germany before moving to England. When they divorced, divorce proceedings were issued in England and the husband’s legal team argued that although the prenuptial agreement would have been valid if the couple had divorced in Germany, it was not valid here. The Supreme Court judges decided that in this case, the German prenuptial agreement could be upheld. They ruled that, provided certain formalities are complied with, a prenup can hold “decisive” weight. In other words, prenups are now presumed binding unless they are deemed to be “unfair”.
Since then there have been more cases where a prenuptial agreement has been largely upheld, but the poorer party’s needs have been met. It is expected that new legislation whenever it comes, will be in that the same or similar form.
Q: Are prenuptial agreements worth the paper on which they are written?
A: Yes. It is a myth that prenups carry no weight in a court of law.
When advising my clients about prenuptial agreements, I ask the following questions:
- How soon before the wedding was it signed?
- Was any pressure placed on the parties to sign it?
- How was it negotiated?
- Was there any negotiation at all, or was the agreement imposed on one party?
- Was there full and frank disclosure of the finances of both parties?
- Did both parties receive legal advice?
- Have both parties’ needs been met in the agreement?
A prenuptial agreement is likely to be upheld if it was consensual and voluntary, made on legal advice, not signed in haste, not clearly out of date (providing for future children, for example, and preferably including review(s) after a period of time) and properly drafted with full disclosure. The court is unlikely to enquire further if needs have been met – but it is important to note that this is not the same as meeting needs “generously” out of the available assets. For this reason, both parties should have received sound legal advice from separate lawyers before signing. Be warned: if you don’t want to sign – don’t.
Q: So what you are saying is, “maybe”. That’s a bit of a cop-out, isn’t it?
A: No, not really. In this country, the jurisdiction of the judge is unfettered when reaching a settlement. In my opinion, that remains the best system by far. The courts have the last word on the division of all matrimonial property.
Because prenups are not automatically binding, the party who wishes for an agreement to be upheld must mount the challenge. This allows the court to retain its right to act in pursuit of a fair result for both parties.
In the USA and in countries including Germany and South Africa, where prenuptial agreements are automatically binding, it is for the poorer spouse to mount the challenge. Unscrupulous spouses can insert clauses into these agreements to ensure that if a challenge is made, the payment is immediately reduced to nil. In such circumstances, the poorer spouse can come away with little or nothing.
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