Are prenuptial agreements no longer just for the wealthy?

Relationships|August 21st 2018

I’ve always thought that there’s nothing more romantic than a pre-nuptial agreement. The romance, of course, is not between the wealthy party and their intended, but between the wealthy party and their money. After all, nothing says “I love you, but I love my money more” better than a prenuptial agreement.

The classic prenuptial agreement scenario is where one party is extremely wealthy and the other is not. The wealthy party is afraid that if the marriage fails then they will lose a substantial portion of their wealth, so they invite the other party to enter into a prenuptial agreement limiting the amount of any claim that the other party may make against them in the event of a divorce. The prenuptial agreement may even state that the wealthy party will retain all of the wealth they owned prior to the marriage.

But are prenuptial agreements only for the wealthy?

A report from America suggests that that may no longer be the case.

The report, from the CNBC news channel, tells us that a 2016 survey by the American Academy of Matrimonial Lawyers found that 62% of the family lawyers who responded had seen an increase in the total number of clients who were seeking prenuptial agreements during the previous three years, and 51% reported an increase in the number of ‘millennials’ requesting prenuptial agreements.

The report speculates that millennials may not be attracted to prenuptial agreements just to protect their wealth. After all, many may not have had time to accumulate significant wealth. Instead, says the report, millennials may be more concerned about debt than wealth.

Obviously on a divorce debts are taken into account just as assets are. Thus, for example, debts may be subtracted from assets before the assets are divided, effectively resulting in the non-debtor spouse (assuming the debts were in the other spouse’s sole name, rather than joint debts) being responsible for a significant proportion of the other spouse’s debts.

And those debts can be substantial. The report cites in particular student loans, which obviously would usually have been incurred prior to the marriage. It seems that the issue of student loans is as big in America as it sadly now is in this country (back in my day the state paid most of my university and all of my college fees, something for which I have always been very grateful). English universities can now charge up to a maximum of £9,250 per year for an undergraduate degree, meaning that after a three year degree a graduate may be left with a debt of nearly £28,000 just for tuition fees alone. Then they may have to attend another educational institution for the vocational part of their education. I seem to recall just recently seeing a newly qualified barrister mention on Twitter that their total student loan was in excess of £50,000. These are huge debts, which will still be around long into the marriage before they are repaid.

So perhaps it is no surprise that the non-debtor party might be a little concerned about the spectre of the other party’s debts.

But there is still the issue of raising the thorny question of entering into a prenuptial agreement. The report quotes a family lawyer who comments: “It can always be a touchy subject. You are drawing lines around mine, yours and ours that can feel counter intuitive when you are planning a marriage.” Well, quite, although I suspect that some may react to the raising of the topic by calling the whole thing off.

Or perhaps I am wrong. The report tells us that millennials are actually better predisposed towards prenuptials than previous generations (including my own). The reason for this, it suggests, is that millennials aren’t as romantic as earlier generations, many themselves being children of divorce. They have also grown in the age of dating apps. These things, says the report, have in some cases contributed towards divorcing the millennial mind-set from the romanticism around marriage.

They used to say that what happens first in America will be repeated on this side of the pond. Maybe therefore we might be about to see prenuptial agreements being more widely used over here, and not just by the wealthy.

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(7)

  1. Bu says:

    An Islamic marriage contract is an Islamic prenuptial agreement. It is a formal, binding contract considered an integral part of an Islamic marriage, and outlines the rights and responsibilities of the groom and bride or other parties involved in marriage proceedings. The marriage contract can extend to non-financial matters usually ignored by marriage settlements or pre-nuptial agreements. Among the stipulations that can be included in the contract include giving up, or demanding, certain responsibilities. The contract may also be used to regulate the couple’s physical relationship, if needed. The marriage contract can also specify where the couple will live and what should happen if the couple should divorce as the main priority is to have an amicable divorce and if children are involved they need to be protected from the harms of divorce usually by shared parenting and not to use the children for their own benefits against each other. Although Muslims believe that a nikah or marriage contract performed in England and Wales is valid in the eyes of God, it is not a valid marriage under England and Wales Law unless also done in a registry office. The parties are merely cohabitees. In Al–Saffar v Al–Saffar [2012] EWCA Civ the couple married in accordance with Islamic law as well as under civil law. Under a prenuptial agreement Mrs Al-Saffar gave up her rights to a share of the marital home in return for her husband paying her a sum of money on marriage. However, when they divorced she applied for maintenance not as per the marriage contract.

    • spinner says:

      I know little about Sharia Law but the more I hear of it the more I like it. In terms of English family law it seems far superior and has stood the test of time rather than with English family law it changes every few years depending on what the latest political fad is, with the example here of people who are not married and have both never chosen to be married are now somehow meant to go through the financial aspect of a divorce, it’s completely illogical which I had assumed incorrectly was the basis of English law.

    • Andrew says:

      Muslims who marry cannot oust the jurisdiction of the court and until all couples are allowed to enter into cast-iron prenups they cannot expect to be treated differently, can they?

      It will always be necessary to give the court power to postpone the enforcement of the prenup during the minority of children – but no longer.

      • JamesB says:

        I did have a look through this and think you are trying to have it both ways Andrew.

        You say they are not married. I.e. under the law its not recognised, so, in answer to your question, then they don’t get the 1973 MCA treatment, so, yes, they are treated differently.

        They have a legal pre-nup contract which does appear to be enforeceable as its not about marriage.

        It does kind of undermine the family law in the UK for divorce, then again the feminists did that in the last 50 years anyway.

        Will the public care about muslims getting Sharia over MCA 73? I’m with spinner on that, I wouldn’t support the MCA 73 and subsequent family law, including 1999 pension sharing and 1991 CSA, in any argument, it needs a complete re-write as its all about the women and children currently. Like I said in my submission to the establishment on the CSA, the communities it makes no sense to flourish outside of what they regard as unnatural law.

        I would rather a fairer secular setup, but given the family law we have and sharia law vote for the latter, sadly, and I have two daughters.

        • Linda says:

          JamesB you are lucky to have 2 daughters in the UK as this is a woman’s world and they will get what they desire as we are heading towards a fatherless society in the UK and the rise of suicides for men will continue.
          As for prenups they are not worth the paper they are written on as the child is of paramount importance in Court and prenups can be ignored in this matter.

  2. Paul says:

    In Islam, marriage is considered both a social agreement and a legal contract.
    Negotiating and signing the contract is a requirement of marriage under Islamic law, and certain conditions must be upheld in order for it to be binding and recognized:
    1 Consent. Both the groom and the bride must consent to the marriage
    2 Mahr. This word is often translated as “dowry” but is better translated as “bridal gift.”
    3 Witnesses. Two adult witnesses are required to verify the marriage contract.
    4 Prenuptial Contract Conditions. Either the bride or the groom may submit contract conditions which, if agreed upon, become legally-binding conditions of marriage.

    Even though the marriage contract sets out what should happen after a divorce which is that the divorce be amicable after all avenues of saving a marriage have been done. The welfare of the child/children is paramount and therefore they should have access to both parents and shared parenting is what is now written in contracts in the UK, however, due to various reasons this is being ignored mainly by the mother so that she gets a more favourable outcome than what was originally agreed in the contract.
    So instead of equality and shared parenting, women increasingly deny contact as they would lose out on child maintenance. Over time they also use the child as a pawn for their own benefit rather than the child. Islamic life is being eroded away due to the advantages of English law.

    • spinner says:

      In India they have different family legal systems for Christians, Hindus and Muslims. We need to do the same here as with a multicultural society without that we are saying that one communities laws are not equal to another communities.

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