We have looked at pre-nuptial agreements a number of times over the last couple of years – particularly in relation to the Radmacher v Granatino divorce case, where the judges’ recognition of the pre-nuptial agreement made between the wife and her former husband, was seen by many as an endorsement of the importance and validity of these contracts.
The Supreme Court ruled that the ‘pre-nup’ in that case should have significant importance in dividing the assets and in general: “It will be natural to infer that parties entering into agreements will intend that effect be given to them.”
When we consider the history of these arrangements and their rise in popularity (when at the same time the number of marriages has decreased) and also the emergence of the ‘sister’ arrangement, the post-nuptial agreement, it might seem at first glance that we are perhaps becoming a less romantic and more financially focussed nation.
So, does signing a pre or post-nuptial agreement, depending on whether it is signed before or after the wedding, mean that romance and love are secondary to a marital relationship, that marriage is becoming a contract rather than a commitment, or that the relationship is more likely to fail?
The short answer is no.
You might similarly ask the question: Does making a will mean you are more likely to die sooner?
Or does taking out car insurance increase the chance of having an accident?
These agreements are primarily about thinking ahead and thinking about what would happen if the unthinkable happens.
It could be argued that making an agreement when you both sincerely have each other’s best interest at heart is something that, with hindsight, if a relationship does end, you might wish you had done.
Such agreements can help to diffuse the pain and angst if splitting up becomes inevitable.
They are also a very personal choice and, as was reported recently, one that Prince William apparently did not make.
There was no pre-nuptial agreement between Prince Charles and Lady Diana Spencer either.
Sir Paul McCartney had no pre-nup arrangement with Heather Mills and according to media reports it looks as though he has no plans to do so before he marries his fiancée.
Although celebrity marriages – and divorces – are the ones that tend to attract the most publicity, a pre-nuptial agreement is not the reserve of the rich and famous.
It is something that everyone entering into marriage can consider and, most important of all, both parties would need to be happy about.
Frankness, openness and fairness are also crucial ingredients for those who decide to go ahead with such an agreement and it shouldn’t be an ‘add-on’ after the cake, dress and reception are sorted.
If you both want to sign a ‘pre-nup’, each of you needs to instruct your own lawyer.
This is very important as if you both use the same lawyer, a judge would be very unlikely to enforce the agreement.
Since 2008 post-nuptial agreements have been recognized in the UK.
This is an arrangement with the same guidelines of fairness and mutual agreement that a ‘pre-nup’ would have and allows the couple to make financial arrangements that suit them both and that can be updated – particularly if in the future they have children.