Why Pre-Nups are so Tricky

Although it may not seem very romantic, pre-nuptial agreements are becoming increasingly common in the UK. And with 42% of marriages now ending in divorce, it is easy to see why.

Setting out how you wish to divide your assets should the marriage end in divorce can seem sensible. However, ‘pre-nup’ law is continuously evolving and remains somewhat unpredictable. Unless you receive expert advice before entering into a pre-nuptial agreement, it can lead to unforeseen complications.

Pre-nups have been somewhat controversial here in the UK because they are not legally binding in England and Wales (as they are in most states in America). However, a landmark ruling by the Supreme Court in 2010 has greatly strengthened their efficacy. Broadly speaking, this case decided that an agreement may have decisive weight providing it is freely entered into by each party, with a full appreciation of its implications. That is unless, in the circumstances prevailing, it would be unfair to do so – particularly where children are involved.
So, what does ‘unfair’ constitute?

Unfortunately this remains a difficult area and the law around pre-nuptial agreements, both in the UK and elsewhere, remains muddy, so it is essential to obtain specialist advice if you choose to enter into one. This should also encompass the possibility of changing personal situations, such as the possibility of a dramatic change in income.

Despite these issues, pre-nups remain a valuable tool – having one may help to prevent costly, lengthy and hostile battles at court if the relationship comes to an end. And you don’t need to be a millionaire to consider one; ordinary individuals are just as likely to benefit. While it may seem distasteful to discuss financial matters in the throes of love, it is sensible to protect family assets acquired before the marriage and also to provide financial security for any children from previous relationships. Naturally, the courts will always try to ensure a fair financial outcome for both parties in a divorce, but having a valid pre-nuptial agreement means you may achieve that faster, and on your own terms.

This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex, and unfortunately sometimes non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.