Prenuptial Agreements

Prenuptial agreements may seem unromantic, but they can bring a degree of certainty, advises Elspeth Kinder of JMW

As a family lawyer, you tend to notice all the elements of family law that are mis-portrayed in popular media (particularly American media) and how this impacts on people’s understandings and opinions on family law issues.

One example is that clients will instruct us to fight their ‘custody battles’ or to pursue ‘alimony’ from their spouse, both being terms we don’t actually use in England and Wales, preferring ‘child arrangements’ or ‘financial arrangements’ respectively. I also notice that clients may have an American media-informed view on prenuptial agreements as well. In TV shows and similar, it seems that the prenuptial agreement has been perpetually weaponised – insisted upon by overbearing parents or used as a tool to lock a spouse into an unhappy marriage, for a divorce would mean destitution.

Whilst I couldn’t comment on the legitimacy of these portrayals in the US, they certainly don’t reflect the truth here in England and Wales. In the past, a prenuptial agreement wouldn’t even have been a strictly legally binding document, acting more as a guide for judges, but in the last 15 years prenups are increasingly being upheld by judges, providing, of course, that they are fair.

There is obviously this view that prenuptial agreements are unromantic, and I do understand where that view comes from. It might seem to be a pessimistic and bureaucratic exercise at what is supposed to be the most romantic and unfettered time of your life. But encouraging my clients to think on it, I ask whether it’s any different to getting contents insurance after you buy a house? You’re not assuming the worst is going to happen, you’re just taking precautions in case they do. It doesn’t mean you can’t still daydream about and plan all the lovely memories you will make in the house. It just gives you the reassurance that you will recover if the worst does happen.

That’s what prenuptial agreements can do – allay fear, both in the marriage as well as if it breaks down. Because fear really is the worst part of a divorce and the subsequent negotiation of financial arrangements. Fear of the unknown, fear of reduced wealth, fear of what life may look and feel like under the change of circumstances. Fear can lead to acrimony, tension, irrational decisions and the associated costs of working things through. Prenuptial agreements really can be useful for any couple getting married if they want to reduce the risk of uncertainty and fear in the event of a divorce.

Furthermore, a healthy conversation about money and an agreement should give them a fair degree of certainty if things don’t work out.

To further contradict the image many people may have of prenuptial agreements, they aren’t just for super wealthy individuals, despite them featuring heavily in reports dissecting the latest celebrity break-ups. Prenuptial agreements can be for anyone, ranging from young couples starting out in life together, where one stands to inherit long-standing family assets or wealth, for example a business or a trust fund, to second timers getting married with enough insight into the pain and distress of divorce to want to have clarity as they enter the marriage, for themselves and their children.

But most importantly, prenuptial agreements encourage open and frank discussions with the partner you’re about to take as your spouse, and that can only be a good thing.



Tedd Walmsley

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Tedd Walmsley managing director of Live Magazines shares his views on the latest topics in media.

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