When you hear talk of “pre-nuptial agreements” you’d be forgiven for thinking that a prenup is the preserve of the Hollywood elite and billionaires; for the J Lo and Ben Affleck’s of the world. However, they have made their way across the pond and are increasingly being sought after in the UK.
Once viewed as “unromantic”, one in five marriages in the UK now involve a prenup. Moreover, the age of those requesting pre-nuptial agreements has decreased significantly, with the average age now being around 30. Evidently, there has been a societal shift in attitudes towards these documents and they are no longer a taboo subject, instead becoming increasingly prevalent in conversation, culture and current affairs.
There is now heightened awareness of the financial risks of marriage and significant media coverage of high-profile divorces, as well as regular sensationalised reporting of the country’s divorce rates. It’s no wonder that younger couples are being more cautious and openly discussing financial issues are they enter a marriage. The fact couples are having open and transparent conversations over money is a matter to be celebrated, not disparaged.
There are many types of people who may be considering a prenup and not just those looking to preserve family wealth. Those with business assets may want to protect, those who have accrued assets prior to the relationship such as houses or pensions and most commonly; those who are marrying for the second time around and wish to avoid a repeat of acrimonious financial proceedings.
Pre-nuptial agreements are not currently legally binding or enforceable as contracts in England, but they are persuasive. In a landmark Supreme Court case in 2010 of Radmacher v Granatino, it was determined that pre-nuptial agreements should be upheld by the English court if the following criteria are met:
- Both parties have had independent legal advice;
- Both parties have had disclosure of the other’s financial position (or understood broadly what they had) so they understood the consequences and implications of the agreement; and
- The pre-nuptial agreement does not give rise to an unfair outcome for either party.
So whilst the English and Welsh courts are now more likely to consider a prenup in their judgements, there are safeguards in place to ensure that no settlement puts either party at a significant disadvantage. Historically, one criticism of prenups was that they created an imbalance or power, favouring high profile and wealthy individuals. As can be seen from the Supreme Court judgment, a Judge will not be bound by a prenup if they feel the outcome is grossly unfair for the vulnerable party.
Prenups may seem unromantically pragmatic. But it is better to have it and not need it, than to need it and not have it.
Heather Reilly 30th November 2024