Lawyers should, as a rule, never be invited to weddings. Whilst the majority of the congregation look at the bride and groom through a romantic haze, offering blessings of joy and happiness; we lawyers look at the couple with the notion that one or both will be telephoning us within a month or maybe a year begging us to extricate them from the other.

Before you suggest I am some humbug or killjoy latest statistics show that 42% of marriages end in divorce. As a result it is becoming more common for the besotted couple to take advice from a lawyer prior to getting married to protect their assets (save of course for their hearts) should they ultimately get divorced

This brings us to the legal initiative of a ‘pre-nup’. A pre nuptial agreement is an agreement entered into between the couple in writing prior to getting married that sets out who gets what should the marriage end.  Even Brad and Angelina had a ‘pre-nup’ and who thought they would break up?

Whilst this may not be the most romantic of concepts (bearing in mind the promise to stay together through sickness and health and all that), it is practical. It aims to ensure that if a marriage ends, you are not taken to the cleaners.

For older couples, or where one wants to ring-fence savings or an inheritance, then this can be very appealing. The Law Society claims that it has seen an increase in inquiries from parents who want their children to sign pre-nups before marrying a partner, amid fears they will lose out on their investments in the event of a break-up.  There is of course, as ever, a legal conundrum. Pre-nups are not strictly legally enforceable.

On divorce the Court has very wide range of discretionary powers to distribute the family assets as it sees fit, in an attempt to bring about fairness between the couple. The Court regards roles of homemaker and economic provider as of equal value to the welfare of the family. As such financial assessment are considered on an individual basis and the court commonly start from the premise of whether an equal division of assets is appropriate.

Pre nups in the UK were given greater importance following the Supreme Court decision in Radmacher v Gratatino [2009] EWCA Civ 649. In this case both parties were foreign nationals who had signed a pre-nuptial agreement, which was perfectly valid under German law, but they divorced in the UK. The pre nup confirmed that neither party would seek maintenance from the other in the event of divorce. The parties lived together for the majority of their marriage in London and had two children. They separated in 2006 and divorce proceedings were subsequently issued. The husband applied to the court for a financial settlement and the High Court awarded him £5.6 million. The wife subsequently appealed on the broad basis that the judge had not given sufficient weight to the pre nuptial agreement. The Court of Appeal allowed the appeal and it was then the father’s turn to appeal to the Supreme Court. The Supreme Court dismissed his appeal, by a majority of eight to one, with Lady Hale (as she then was) dissenting (this happens sometimes). Giving the lead judgment Thorpe LJ confirmed at para.53

 

"in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings. "

As such, this has left us with the principle which is to be applied is that a court should give effect to a pre nuptial agreement that is freely entered into by each party with a full appreciation of its implication unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. Whilst a pre-nup cannot be allowed to prejudice the reasonable requirements of any children of the family, respect should be given to individual autonomy and to the reasonable desire to make for existing property.

So it is a very good idea to arrange a pre-nup, as the Court will take it into account when exercising its discretionary powers. The Law Commission proposes that pre-nups should be legally binding as it feels it will make it easier for couples to manage their finances after a split. It takes the view that couples should be able to have a grown up discussion about finance before entering a marriage or civil partnership. A further restriction, under the commission's proposals, is that agreements would only be enforceable "after both partner's financial needs, and any financial responsibilities towards children, have been met". The commission has called on the Family Justice Council, whose members include judges and lawyers, to produce "authoritative guidance on financial needs" to enable couples to reach an agreement that recognises their financial responsibilities to each other.

It is rather a good idea, even with these caveats, that where there is one partner with greater assets or expected inheritances (or maybe a history of romantic dalliances) that they should sit down with a barrister and have a pre nuptial agreement drawn up.

So should you be considering walking down the aisle, for that ultimate of romantic rendezvous, perhaps your best man (or woman) should be your barrister after all, standing side by side, for richer or poorer.

Jason M Hadden MBE is a barrister in family law at St Ives Chambers in Birmingham and can be contacted on 0121 236 0863

Comment