How do you propose a prenup? Raising the topic of a prenup is far from simple. Rasika Sittamparam has been asking top family lawyers for their tips on how best to pop the question
In a 2010 landmark Supreme Court ruling in the case of Radmacher v Granatino stopped short of rendering prenups legally binding in all cases. However, it did establish that ‘the court should give effect’ to prenups, so long as they are ‘freely entered into by each party’, that the parties know what they are agreeing to and unless there are circumstances that mean ‘it would not be fair to hold the parties to their agreement’.
The strength of that last part, in particular, may be tested over the coming months and years. As Joanne Edwards of Forsters points out in our article on the future of HNW divorce, it is roughly 12 years since Radmacher v Granatino. And the length of the average marriage? Roughly 12 years…
This means the uptick in prenuptial agreements that followed the case is about to be echoed as marriages run their course. The consequences of this will be interesting to observe. But, for now, prenups remain a fixture in the lives of many a prudent HNW – as long as they’re brave enough to broach the issue in the first place.
Three’s a crowd
The subject should be approached ‘with kindness, not as a business transaction,’ says Caroline Park, a partner at Hughes Fowler Carruthers who specialises in complicated financial disputes among families. Since prenups can bring up emotional moments, they should be raised ‘sensitively’ in a private conversation between the couple ‘and, generally, without other family members present, however invested they may be in protecting family money’.
Before, not after
While post-nuptial agreements do exist, there is a consensus among family lawyers that a prenup, signed well in advance of the wedding, is far better. Catherine Costley, a partner at Payne Hicks Beach who specialises in prenups, explains that this is a practical move: ‘An honest conversation about how you plan to manage your financial affairs would not go amiss in most relationships, and if you don’t like what you hear in that conversation as you contemplate marriage, isn’t it better to know before you tie the knot?’
Prenups should be introduced to your betrothed ‘incrementally over time’, according to Zoë Bloom of BloomBudd. ‘Let someone get used to the idea and take their time with it until it becomes an inevitability,’ she says. ‘This means addressing it early and not being afraid to discuss it with your partner, but never pushing it and gently reintroducing it to the conversation.’ She adds that once your partner is comfortable with the idea, offering them help to find a lawyer is a step in the right direction.
It’s quite possible that prenup discussions will get heated, so having a strategy to manage this is crucial. Bloom’s best advice for this is ‘for there to be one exchange of terms, and then a meeting, which will be horrible’.
‘At that meeting, the lawyers should be prepared to stay all day until the document is completely finalised and you can sign there and then,’ she says, adding that this is why ‘a lovely dinner afterwards’ with friends is a must to ‘defuse the tension’.
Prepare for a challenge
Prenups are becoming increasingly common, even among couples where neither children from previous relationships nor inherited wealth is a factor, according to Caroline Park. ‘For HNW individuals, prenups are increasingly part of the package,’ she says.
This is why it is important to challenge the terms of the prenup, according to Bloom. ‘People shouldn’t be afraid of them,’ she says. ‘Do understand that you will be held to the terms, so don’t be afraid to stand up for yourself.’
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Image Credit: Wikimedia Commons/Bonhams
George Sheridan Knowles Signing the marriage contract 1905