A generational shift in attitudes will help drive a rise in the number of prenuptial agreements in the UK, an industry leader predicts.
Sarah Jane Boon, a Spear’s recommended partner at Charles Russell Speechlys, explains younger clients take a more ‘businesslike’ approach to marriage than older generations and are therefore more likely to embrace prenups.
‘I think it is probably going to be the case that younger generations want to plan for things that perhaps older generations haven’t,’ she tells Spear’s. ‘That’s just a different shift in mindset.
‘From professional experience, I find younger clients more businesslike about the whole idea of having a prenuptial agreement, whichever side they’re on, whereas older people feel a bit more agonised about the emotional side of it. They’re more likely to see it as a judgement in some way, or fear the other person is going to feel that.
‘I think the more that fades over time, the more agreements you’ll have, because that’s the biggest barrier for people. They think, “oh my god, I can’t possibly raise [a prenup]. What will they think? What will our friends think?”’
Prenups on the rise
The number of prenups is on the rise. A 2021 report from think-tank the Marriage Foundation found one in five couples married in the UK since 2000 had some kind of prenup – more than double the 8 per cent recorded in the Nineties. Co-op Legal Services reported in November 2023 that the number of clients requesting a prenup has more than doubled in the last 12 months.
‘I’ve been a family lawyer for 15 years and I do more and more prenuptial agreements every year,’ says Boon. ‘I think that’s the general experience of the people in our team. That’s partly because things are evolving and people feel more comfortable with the idea of a prenuptial agreement. There’s also a greater general awareness that prenuptial agreements are worth doing and are likely to be taken into account [in the case of a relationship breaking down].’
Prenups are recognised by English courts but are not legally binding. When deciding whether to uphold an agreement, a key consideration is whether it is ‘fair in the circumstances’, explains Boon. That means fair at the time of the divorce – rather than when the document was first signed.
‘The potential grey area for people is they sign something that they think is fair, but 15 or 20 years later, they say “I’m not sure it feels fair now” given potential change in their circumstances,’ Boon continues.
An individual can take steps at the beginning of the process to ensure this eventuality is avoided by drafting an agreement that ‘provides for the potential eventualities that might come during a marriage’. If this isn’t done at the outset then it is sensible to have an agreement that is reviewed under certain pre-agreed conditions, for example after the birth of a child or the inheritance of a significant sum of money. Periodically reviewing the prenuptial agreement is likely to strengthen its standing in the eyes of the court.
As Boon explains: ‘Case law tells us that where people have had more than one agreement, one agreement that’s been reviewed, it’s much more likely to be upheld because the court can see you didn’t just enter into it once, you thought about it again five years later, you slightly changed things, you signed up to it again. It’s very difficult then to say at the end of all of that “none of those discussions were appropriate or fair”.’
The impact of the Law Commission review
The Law Commission is carrying out a review to examine the 50-year-old laws on financing after divorce and the ending of a civil partnership. A report is expected in 20224. The outcome could have a significant impact on the position of prenuptial agreements within UK family law.
‘We expect the Law Commission to recommend some reforms that make the system a little bit more certain; it’s a very discretionary operation at the moment,’ explains Karen Watson, a knowledge department lawyer at Charles Russell Speechlys who supports Boon’s team with technical ‘know-how’.
‘That might mean prenups become, not necessarily contractually binding in the same way that a commercial contract is but they are clearer as to what is going to happen. I think that would play into a rise in prenups.’
The Labour Party has already said it would look at cohabitation if it comes into power after the next general election. It is possible it might also consider the Law Commission’s recommendations on divorce. However, this is all still up in the air.
Watson adds: ‘The government totally ignored the Law Commission’s recommendations for prenuptial agreements themselves. But if the law in this area changes, that might actually feed into more people thinking “let’s choose this kind of financial setup between us”.’