‘Love is the wisdom of the fool and the folly of the wise’. Dr Samuel Johnson
Can proposals and a discussion about prenuptial agreements be uttered in the same sentence?
Never let it be said that romance is dead…They don’t work.
Not marriages: marriages do work, and by the way, prenuptial agreements also generally do work. Do not be fooled by those who say ‘its not worth the paper its written on’. When correctly drafted, they should hold when put under scrutiny.
All prenuptial agreements made in England and Wales are subject to Section 25 of the Matrimonial Causes 1973. If you divorce…IF, not when, and financial matters are to be considered in terms of a split between the parties, the court will consider all factors of your marriage, and all the assets which exist. The courts seek to establish a position of fairness based on a number of factors which include, age, physical and mental health, children, standards of living enjoyed, and income and earning capacity amongst others.
A prenuptial agreement is therefore always going to be subject to adoption of the section 25 factors and the courts above all else, will be looking at fairness.
In order for a prenuptial agreement to survive, there must be a minimum set of ingredients which broadly speaking are:
- Full disclosure of each other’s assets
- Sufficient time to review and to reflect upon such an agreement before signing, in proximity to the marriage itself
- An opportunity to take independent legal advice
- An absence of coercion, undue influence, or other economic duress
It is worthwhile to review a prenuptial agreement upon a change of circumstances which could include children being born, inheritance, financial windfalls etc…All of these things could affect the circumstances in which prenuptial agreements will be tested.
Of course, you should always marry for love, and never for convenience. It would be naïve, rather than cynical not to protect company and/or pre-matrimonial assets and pensions etc…in the event of divorce.
Commercially, it would be absurd if you were entering into a business transaction, without considering a downside, the possibility of a dispute arising, how best to deal with such a dispute, and exit strategies. Why should the exit of a marriage be considered any differently?
The writer hopes and prays that those who do propose and eventually marry, marry in good health and happiness…but marry wisely with their eyes wide open as to what happens in the event that it all goes wrong.
May your prenuptial agreements be fair, and best left kept in a drawer and never referred to again.
Professor David Rosen is a solicitor-advocate and principal of David Rosen & Co. He is a member of Resolution, the Society of Legal Scholars, RUSI, and the ACFE amongst others. He advises on divorce and finance including pre-and post-nuptial agreements, and good strategies to ensure that assets are ring-fenced.