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Recent controversial divorce court decisions that have been hitting the headlines have reinforced my view that all couples contemplating marriage, irrespective of their financial or other circumstances, and well before they have fixed a date for their marriage, should consider the need and suitability of a Prenuptial Agreement for themselves.
Such Agreements are particularly relevant for couples entering into a second marriage, where they wish to protect their pre-marriage acquired assets against claims by their new spouse. Reasons for this could be for the benefit of their children, or in cases where a party has or expects an inheritance, holds a share in a family or other business, or there is a large disparity in wealth. Indeed, if there is a dynastic family business, such as a farming business, that has been passed down the generations, with the intention that it will continue to be so, then the need for a Prenuptial Agreement is a serious consideration for the whole family when a member of that family is getting married.
If couples are young, and neither has significant existing assets and no particular inheritance prospects, then a Prenuptial Agreement may not be required. However, the reality is that marriages today are many and varied, with second and third marriages not uncommon, resulting in complicated family structures.
This country has been slow to change in attitude to Prenuptial Agreements compared with many countries in Europe and the rest of the world where such agreements are considered the norm and an accepted part of the marriage process. The couple is required to expressly declare, as part of their marriage process, whether they intend to share the property and assets that accrue during the marriage or keep their individually earned and accumulated capital and property separate from one another.
My experience, even in the most straightforward of cases, is that there are often emotional repercussions as a consequence of negotiating a Prenuptial Agreement, particularly the closer to the wedding the negotiations take place. This leads me to conclude that couples should put their minds to the terms of an Agreement at least six months before their wedding date but, ideally, before they have fixed the date and made many of their plans.
Unfortunately, I have found that this is often not the case and I find myself in the delicate situation of trying to negotiate a Prenuptial Agreement on behalf of my client only a month or so before their wedding date. I have to do this as sensitively as possible bearing in mind my client will simultaneously be making serious wedding preparations with their intended.
Nevertheless, my view is that provided the terms of an Agreement can be considered well in advance of the wedding, the benefits of an Agreement outweigh the difficulties that arise from the negotiation.
Couples can get lost in the romance and euphoria of getting married and can either ignore or marginalise the financial risks and realities that follow marriage.
There is an old saying; “Marry in haste and repent at leisure”. It may be a cynical view, but in considering the terms of a Prenuptial Agreement, the couple may learn something new about the others’ true views and intentions about financial matters following marriage and possibly even about the others’ view about having children together. They may be surprised at what they find out.
In the recent case of Sharp v Sharp [ 2017], ALL ER(D) 74 (June) the Court of Appeal held that the wife was correct in arguing that the court should not split the assets accrued during the marriage equally. The wife argued this because the marriage was short (7.5 years) and childless, with both parties working and having kept their finances largely separate. The court awarded the husband £2 million pounds out of a matrimonial pot of £5.45 million. The wife had argued £1.3 million was sufficient to award her husband. The husband had sought half at £2.725 million.
In reality, neither party would have been happy with the result because the husband did not get the 50% he had sought and the wife had to concede more than she had hoped despite her argument that the pot had been largely generated by her sole endeavours and not by the husband.
The majority of family lawyers believe that the Sharp judgement raises more questions than it answers. What will constitute a short marriage? What if a case has only some of the Sharp factors, for example, it is a short marriage, no children but there has been an intermingling of the assets between the parties, or there is a wider disparity in incomes? What will a court do in slightly different circumstances?
In the case of Mills v Mills EWCA Civ129, the Court of Appeal increased a wife's spousal maintenance against her ex-husband to meet her basic needs. This was in spite of the husband arguing that her claim for an increase was due to financial mismanagement of capital awarded against him in the original court proceedings some 15 years previously. The court determined that despite the circumstances the husband could afford to meet her ongoing basic needs and that the wife was not guilty of extravagance or irresponsibility. Nevertheless, this result contradicted the argument that one party should not be an insurer against all hazards and eventualities, particularly if this arises many years afterwards.
Both of these cases reinforce my view that the negotiation of a properly entered into Prenuptial Agreement, finalised in good time before the wedding, will provide much-needed certainty for the parties. If the marriage subsequently breaks down, provided the terms of the Agreement are fair and would be upheld by the court, the couple can avoid costly, distressing and time-consuming litigation, the result of which may not have suited either party anyway.
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