The Dangers of Pre-nuptial agreements
There’s a strange phenomenon in our household when any comedian is using marriage as the source of their comedy material. No matter how funny or well observed the gags, neither my other half nor I will laugh out loud for fear of suggesting that we live in anything other than permanent loved-up bliss. The reality is that after decades together you are no longer the same couple you were when you first met – and that’s not a bad thing. There’s a good reason that births, deaths and marriages are often grouped together. People change as life’s events unfold. Sometimes these experiences bring a couple closer together, sometimes the opposite. So whilst staying together as a couple is an achievement, having the courage to decide that your marriage is no longer working is equally commendable.
Society’s changing attitudes are reflected in the number of marriages or civil partnerships that are subject to a pre-nuptial agreement. A pre-nuptial agreement (or pre-nup) is a legal agreement setting out what each partner will be entitled to if the marriage ends. In the 1990s around 8% of marriages were bound by a pre-nup, in 2022 it’s around 22% according to the Marriage Foundation. If you are thinking about entering into a pre-nup the recent case of a London lawyer should serve as a cautionary tale.
The 58 year old woman challenged a pre-nuptial agreement setting out that in the event of a divorce any 50-50 split would exclude assets that were solely owned by the other spouse. The woman’s husband owned a property portfolio worth around £1.7million. She argued that even though one of the properties was purchased in her husband’s sole name during the marriage, it should be viewed as a “second matrimonial home” since they had spent weekend and holidays there. The Judge rejected the claim, saying that by the same logic the ex-husband should be entitled to a share of the woman’s London flat, since they lived there as their main family home. A claim that the property should be shared on a “needs basis” was also rejected by the Court. In fact, the Judge criticised the woman for failing to build up her pension over the past 40 years. One thing that I neglected to mention is that the woman heads up the Family Law division of a London law chambers and drew up the pre-nuptial agreement herself.
No one likes to think that they will fall out of love or end up getting divorced. If you have the foresight to be thinking about a pre-nuptial agreement the moral of this tale is that you need to have an independent, experienced solicitor draw it up on your behalf. A solicitor is one step removed and can explain how the Courts interpret agreements and make sure that the wording of any agreement actually reflects your wishes and isn’t open to being challenged.
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Legal disclaimer
The articles published on the website are intended to be for general information purposes only. These articles do not constitute legal advice, nor should they be used as a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to their accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained in any of these articles, expert advice should be sought.
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