John Bolch on the popularity of pre-nuptial agreements

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.

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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.