Despite the Royal Family’s lack of interest in prenups, the agreements are becoming indispensable for many more in Britain than before — here’s why, write Joanne Raisbeck and Jemma Ellison
‘Love is a temporary madness. It erupts like an earthquake then subsides…’ and when it does you may just hope you had a contingency in place to lead you out of the rubble.
With the wedding season on the brink of its beginning and the excitement of newly engaged couples still in their festive bliss with hopes for the future, the realists among us are likely to be less optimistic for a fairy-tale ending. With the divorce rate in the UK remaining high, the probability of a marriage ending in can no longer be ignored. But there’s something that can at least ease the wedding jitters.
Prenups, written agreements before a marriage which dictates the division of money and property in the event of divorce. There is a common misconception however, that the agreement is ‘not worth the paper it is written on’, as technically, it’s not legally binding under English Law. This is the view the Royal Family household hold currently, perhaps the reason why Prince Harry and Meghan Markle will not be signing one before the highly anticipated wedding of the year. That doesn’t mean that commoners can affford to ignore it, though, as a weighty prenup could be a potential life saver following a breakdown.
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Indeed, following the Supreme Courts’ decision in the case of Radmacher v Granatino in 2010, there has been a real shift in the Court’s approach to prenups. The present position is that provided a prenup is deemed to be ‘fair’, the court is likely to uphold it. The message is simple: if you sign one, you should expect to be held to its terms.
The good news is, more couples can benefit too, as the agreement is in no way restricted to those of celebrity status in our society today. In fact, they are popular in the UK for couples of all backgrounds as many now see the value in the protection they can provide. They are particularly useful for couples in second marriages or blended families wanting to ring-fence pre-acquired wealth, and for those who want to protect businesses, family gifts or even inheritances that have yet to be received. A properly drafted agreement, with the help of a lawyer, can help you to achieve all of this should the worst happen.
So we know there’s a to-do list for the wedding, and we now know that a prenup is an essential addition, but when is the right time to draft it? For a pre-nup to have weight at the time of a divorce it must be entered into freely, in good time before the wedding (ideally not less than 28 days) and the couple must each provide full disclosure of their financial information to the other.
Each party will also need separate specialist legal representation, the agreement must ensure that the reasonable requirements of any children are not prejudiced and furthermore it must not leave one party with less than they ‘need’ while the other party is comfortably provided for. Follow these guidelines and you are then free to include pretty much whatever you like. Indeed the real benefit of a prenup is the ability it gives to tailor the content in order to suit circumstances and priorities. As well as more common clauses which seek to distinguish between a couples ‘separate’ and marital property, an agreement can also protect one party from debts of the other, assist with tax planning and provision on death and can contain governing law, jurisdiction and arbitration clauses. Sunset clauses which enable the prenup to fall away after a period of time of say 10, 15 or 20 years of marriage are also common.
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While the romantics among us may despair at the thought of how a prenup could douse the fires of love and sully the excitement of wedding plans, the reality is that it is an insurance policy, a practical and cost effective way should things not go to plan. And with good legal guidance, it will well worth the paper it’s written on when D-Day dawns.
Joanne Raisbeck is a legal director and Jemma Ellison is a trainee solicitor at Hill Dickinson
