Hearts, Flowers & Pre-nups…

There has been increasing media noise lately about Pre-nuptial Agreements  – usually those of the rich and famous, and it would appear that even Katie Price has finally got the message. What’s not to like after all? What’s mine is mine and Abba got it wrong if they thought I’d take a chance on you!

Well, the thing is – it’s not quite as simple as that.  To clarify, whilst the ‘Pre-nup’ culture has doggy-paddled inexorably across the Atlantic to us, it hasn’t been grasped fondly to the bosom of its judicial master in the courts of our great land and it has remained far from a ‘sure thing’ that what you will get is what you signed up to before marital bliss took its toll. The reason for this is that the courts retain the absolute right to override a ‘Pre-nup’ if it’s content would otherwise be ‘unreasonable’-principally in meeting the parties needs with reference to their resources at the time of divorce. So whilst a court will always consider a ‘Pre-nup’ where one exists, it does so as one of a number of considerations, not as an overriding one. This is what makes it so important to get the drafting right – if it looks unreasonable, sounds unreasonable and tastes unreasonable, then odds are, the court will disregard it for being unreasonable.

The Law Commission has just put together a series of proposals for statutory reform in this area for the government to consider introducing specific legislation for the recognition and implementation of ‘Pre-nups’. This could change the scenery a little and one can’t help feeling that the vast private and inherited wealth of the current cabinet may be prone to favour the move. Even if this vision of the future comes to pass, however, it isn’t going to be a brave new world out there. Lady Hale of the Supreme Court may not be Judge Dredd but she won’t take lightly an attack on a family’s needs or a court’s ability to meet those. To whit, “Marriage still counts for something in the law of this country and long may it continue to do so.”

So, where now?  Well, you may want to print-off your Valentine cards from Moonpig.com  but for goodness sake, the internet is not the place to find a DIY ‘Pre-nup’ in advance of the big day! If you want to make it count then it has got to be comprehensively detailed and accurate with clear provision for all eventualities. More, it has to be reasonable, and only an experienced matrimonial lawyer can tell you what a court would deem that to be in your individual circumstances.  I won’t start on all the validity requirements that relate to the ’how’ of entering into such an agreement for it to be accepted as such in the first place….you get my gist. If you want to give your heart but not your financial health, a well drafted ‘Pre-nup’ will already serve you and save you.

Now go and sort that Valentine!

Nicola Fraser