For better or worse: the rise of the prenup

Marriage|Relationships|August 29th 2018

The Royal couples don’t have one whilst Beyonce reportedly signed one that gives her $5 million for each child they have together – prenups are becoming increasingly popular in England and Wales.

Whilst probably not at the top of a long list of things to do when planning a wedding, a prenup may not be romantic but when handled correctly it is an important step in protecting your relationship.

We asked Naheed Taj, our Managing Partner at the new Stowe Family Law office in Reading to join us on the blog to discuss prenups and why they are not as intimidating as you may think.

There has traditionally been a perception that prenuptial agreements are in some way a sign that a marriage is doomed before it even starts. But this is simply not the case. Actually, a well-prepared agreement can secure both parties’ position for the future and avoids uncertainty and disputes. Having one in place can also help to avoid protracted and costly litigation should you choose to divorce.

Now, there is a small sticking point. For those readers living in Scotland properly prepared prenups are enforceable and legally binding, as they should be. For those living in England and Wales, they are not automatically. However, weight is given to when the parties entered the agreement and its intended effect and this weight is increasing.

The case of Radmacher v Granatino made it more likely that a prenup would be considered, unless unfair to do so, in English courts. This is supported by the Law Commission’s recommendation that prenups should be deemed legally binding, providing certain criteria on ‘fairness’ are met.

Those ‘tests of fairness’ include:

The husband and the wife both received independent legal advice about the agreement at the outset
Full and frank financial disclosure of both parties’ assets was made prior to the agreement
Assets were not hidden.
Neither party was under pressure or duress to sign the agreement against their will
There has been no significant change which would make the agreement inappropriate (for example, the birth of children)
The agreement has to be fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged to be unfair by the courts
Prenups should be reviewed periodically and amended during the marriage, particularly when any child or children are born

Given the increasing likelihood of prenups being considered legally binding and their continued weight, it is important that if you decide to have one you get a well-drafted agreement completed by a family law solicitor so that it is as robust as possible.

I’m often surprised at how many people enter into marriage, one of the biggest financial and emotional commitments many of us make without advice or an agreement to protect our future financial position. We often spend more time researching a new phone and an 18-month contract commitment.

In my experience, some couples simply want a list of who owned what at the time of the marriage, to ring-fence their assets. Others use the agreement to detail exactly what should happen in terms of who gets what, when and how.

The key is to be clear about what both parties want through careful discussion. And use a reputable and specialised family law solicitor as a poorly drafted agreement will increase the problems if the marriage breaks down.

Would you like more detail on setting up a prenup agreement?

For further information on prenups, you can get in touch with Naheed here.

Author: Naheed Taj

Naheed has extensive experience of working in family law. She is an expert at private law disputes concerning children and complicated arrangement issues and has an interest in cases with an international element. She has expert knowledge of Sharia law, Talaq and dowry and is fully conversant in Urdu and Punjabi.

Comments(3)

  1. Andrew says:

    The law needs amendment to reflect the obvious truth that what the parties agree is by definition fair; or at least fairer than the imposition of a settlement more favourable to one party than what they agreed. If they provide that they are not to be varied by subsequent changes of circumstance that is fair too. The only jurisdiction of the court should be a power to postpone sale of the matrimonial home during the minority of children – and no longer.

  2. JamesB says:

    I agree with what Andrew says, on this above at least. Now I’m off to look up Beyonce’s pre nup (however you spell Beyouncé). I think I remember Nicole Kidman’s husbands prenup saying he got $1000000 for every year they stay married.

  3. JamesB says:

    I agree with what Andrew says above. Mine says, Scottish law does apply for any settlement of disagreement if it comes to it. Probably not valid legally, but I trust my wife to stick to the terms and vice versa if it comes to it, hopefully it wont.

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