Prenups and their growing popularity

Now we’re not saying they’re a gold-digger… but why is it that more millennials are seeking to enter into a prenuptial agreement (colloquially referred to as a “prenup”) before getting hitched?

I can’t be the only person who rolls their eyes every time they read a new headline about millennials. Although I am willing to admit this is probably because I am one and I refuse to believe that my inability to get onto the property market has anything to do with my profligate avocado consumption (however basic that may be).

However, I was intrigued when I first read in the Business Insider that more millennials are entering into prenup agreements. Now granted, this article predominantly relates to the usage of prenups in the US, but I was surprised to learn there has reportedly also been a 63% uptick in the demand for prenups in the UK.

What is responsible for this seismic shift in cultural attitudes towards prenups? And are they even really a thing under UK law? The aim of this post is to explore those questions and provide some top tips when it comes to drafting.

Changes in attitudes

It seems that prenups are no longer the exclusive preserve of the rich and famous, more and more “ordinary people” are signing them too, and here are some of the reasons why.

1. Our attitudes to divorce are changing

Now no one ever goes into a marriage hoping to get divorced and yet, our cultural attitudes towards divorce itself are changing. In a society where 42% of marriages end in divorce, being a divorcee has lost some of its stigma.

It follows then, that planning for that eventuality would start to become more prudent than pessimistic, and a prenup becomes a question of being financially savvy rather than unromantic.

2. We’re typically marrying older

Statistics show that on average people are marrying later in life. According to figures from the Office of National Statistics, the average age at which women walk down the altar is now 35.7. And for men, it’s 38.

The average age at marriage for same-sex couples was slightly higher, at 36.6 years for women and 40.1 years for men, based on 2017 data. This leads on to reason 3.

3. People have typically begun to accumulate wealth separately prior to getting hitched

Lets face it, getting on the property ladder in 2020 is no walk in the park. It’s hardly surprising then that those who do want to protect their assets. Indeed, marrying later typically means that millennials have been on their own, accumulated some wealth whether that be due to their income, investments or real estate and they want to do their best to ring-fence that property from their spouse in the event that the relationship should break down.

When you couple this with the fact that millennials typically tend to cohabit longer before getting hitched, the case for not inter-mingling assets, and wanted to keep some of the financial freedoms you experience before marriage make sense.

But what does this mean in UK law? Are prenups worth the paper they’re written on?

We tend to think of prenups as a foreign concept, and specifically quite an American tradition. But can you get a prenup in the UK and what is the legal status of such an agreement?

A prenup is an agreement that a couple planning to wed may decide to enter into that shows what they intend to happen to their money/property in the event that their relationship may come to an end. The main attraction of a prenup is that it can give parties more certainty as to financial arrangements and can be an effective way to protect assets you may have had prior to the marriage provided you comply with some of the key legal steps we will explore further below.

The laws applying to pre-nuptial agreements in UK divorce law come from the usual divorce laws but also from a seminal decision of the Supreme Court in 2010 (Radmacher v Granatino) where the court said:

‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.

Radmacher v Granatino

So far so good, but are prenups binding under UK law? The effect of the decision in Radmacher (and subsequent case law) means that they are not strictly binding in England & Wales in the sense that a judge is not obliged to uphold the agreement.

However, the terms of a prenuptial agreement may be decisive in the event of a dispute that is dealt with by the court unless the effect of the agreement would be unfair.

In other words, just because a prenup exists doesn’t necessarily entail that a judge will have to enforce it if the parties’ circumstances have changed and it would no longer be fair to do so. The judge would still retain their discretion to make an award with reference to their checklist of factors under s.25 of the Matrimonial Causes Act 1973.

But if there is no good reason why the judge shouldn’t uphold the agreement then the terms of that agreement will be persuasive. There are also certain factors that couples wishing to sign a prenup should consider to make their document more likely to stand up in Court.

Tips for making a prenup more binding

The courts have indicated that in order for an agreement to be considered fair, the following will be taken into account:

  1. Whether both parties to the agreement had independent legal advice before entering into it
  2. Whether there was full financial disclosure—i.e. both parties having sufficient information to make an informed decision on to whether to enter into the agreement with a full understanding of its implications
  3. Whether the terms of the agreement are substantially fair, ie does the agreement provide for both party’s basic needs to be met in the event of a divorce? Consider whether or not your circumstances changed since you signed the prenup. For example, if a prenup was drawn up in contemplation of a childless marriage, and you have since
  4. That neither party felt pressurised by the other party to enter into the agreement, ie that there was no undue influence or duress
  5. Whether there was any fraud or misrepresentation by a party in relation to the agreement, and
  6. And the lawyer-y bit; whether legal contractual requirements were followed when the agreement was entered into, including a statement in the agreement that you and your spouse intend to ‘create legal relations’ by entering into the agreement, and that the agreement is executed as ‘a deed’, which includes that it must be witnessed by an independent witness.

For the reasons given above then, it’s important to regularly review any prenup agreement you may have whenever you have a significant life event (e.g. children, a significant change in assets) to ensure it can be as persuasive as possible.

Will a prenup stop all divorce litigation?

Unfortunately (for those who want an entirely binding prenup that is), having a prenup won’t entirely eliminate the risk of going to court to argue about the assets. In the event of a divorce, if one of you no longer wishes to be bound by the prenuptial agreement, but the other person does, that person may make an application to the court for the other party to explain why an order should not be made in the terms of the agreement.

Whether the court will uphold the agreement will depend on the factors detailed above, but it is for this reason also that a family lawyer will tell you that you should not enter into a prenuptial agreement unless you intend to be bound by the terms of that agreement.

Summary

A prenup can be an effective mechanism for protecting your assets but it really is an area where specialist legal advice can prove invaluable.

In the wise words of Kanye West, “if you ain’t no punk, holla’ “we want prenup!” “we want prenup! yeah!”, but in the even wiser (I hope!) words of a divorce lawyer; if you do want a prenup then ensure you keep it up to date if you want it to stand a chance of being enforced.

*Please note the purpose of this article is to give information and guidance surrounding the enforceability of prenuptial agreements in the UK. It not is intended to be a substitute for specialist legal advice tailored to your individual situation*

#familylaw #prenup #pre-nuptialagreement #milennials #wedding #engagement #divorce #relationships

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