Pre-nups: do they suggest the marriage is over before it’s even begun?16 Apr 2015
With pre-nuptial agreements on the rise in the UK and judges seemingly becoming more and more willing to honour them, it is clear that times are changing. Although not yet automatically legally binding, it seems that things are heading in that direction and it may not be long before pre-nups form an integral part of wedding planning. So, are these agreements a modern day necessity or are they a little bit too Hollywood? Kuits Family team investigates.
Location, DJ, caterer: these are all things most couples will naturally think about in the run-up to a wedding. But how to split your assets in the event that you get divorced? Surely this is in contention with the concept of ‘till death do us part’?
It is certainly understandable that some couples struggle to find a place for pre-nuptial agreements as part of their ‘wedmin’. After all, many view them as business contracts, drawn up as protection against potentially untrustworthy associates. Patrons of the good old-fashioned kind of romance will argue that marriages should not be approached with such business acumen and, instead, we should be able to trust and love our spouses enough to believe that we would be capable of reaching financial arrangements respectfully and maturely in the event that things don’t work out. If one does not have such faith in their other half, then perhaps this suggests that they are marrying the wrong person.
There is potential that even those in secure relationships are at-risk of damaging them by heading into marriage with what many will deem to be a ‘negative attitude’. Admittedly, marriage cannot always be ‘till death do us part’ and sometimes divorce will be inevitable. However, entering a marriage openly admitting this possibility may be seen to encourage it. Just as marriage counsellors suggest that spouses should never threaten ‘divorce’ as ammunition in a fight, many view the ‘pre-nup’ in the same way.
There is the obvious danger when creating a pre-nuptial agreement that there will be a power imbalance, resulting in an unfair arrangement; however, this is not the only problem in relation to their content. In reality, both parties may be negatively affected due to the fact that pre-nups are created before the marriage, when the couple are likely to be in a state of bliss. This means that there is potential for the financially stronger spouse to be overly generous with regards to how they wish to deal with their assets in the event of divorce and so, too, the financially weaker spouse may agree to accept less than they should.
With so many negative connotations attached to the creation of pre-nuptial agreements, it can be hard to understand their attraction. However, by placing concerns for romance to one side, their value can be understood.
The first and most frequent argument used to defend pre-nups is that they are simply misunderstood. Rather than being an indication of shaky marriage foundations, they are actually just a way of behaving responsibly. Just like when somebody takes out home-insurance, they are not asking for a break-in or house fire, but instead are protecting themselves against the potential risks; so too, a couple who sign a pre-nup are simply taking precautions against the worst-case scenario.
As stated above, there are those who believe that spouses should be able to trust that they will be capable of sorting out their finances fairly upon divorce. However, there is the opposing argument that it is actually the couples who truly care for each other that enter pre-nups. Rather than viewing pre-nups as a way of protecting assets from your other half, they can be seen as a way to set out what both parties should equitably receive in the unfortunate event of divorce. By acknowledging that if divorce occurs emotions will be running high, it makes sense to deal with the matter ahead of time, when each party is calm and hurt feelings will not get in the way. The fact that a couple is able to talk openly and honestly about such a sensitive topic before their marriage should prove that they have strong communication skills and feel comfortable with each other, and this is something that should be praised, not scorned.
Pre-nups acknowledge that we are not fortune tellers. Rather than entering a marriage with blinkers on, they allow couples to maturely accept that divorce is a possibility. Pre-nups appreciate that people can change: personal debts can spiral out of control, substance abuse can occur, people can make a lot more money than they expect to; therefore, we should be willing and able to discuss what should happen in all of these circumstances. People who are marrying for the second time may have children from a first marriage. In this situation, these children will be a priority and a spouse will want to ensure that nothing occurs to jeopardise their ability to provide for them.
With divorce rates so high, pre-nups are not so much pessimistic, but rather realistic. As the age-old saying goes, ‘prevention is better than cure’, and this provides a valid response to the argument sometimes put forward by older generations who question what the point is in getting married in today’s day and age when people plan for divorce before the wedding has even taken place. This argument suggests that divorce is a new phenomenon brought about by pre-nups; this, of course, is wholly inaccurate, as divorce and financial claims have been occurring for years. Pre-nuptial agreements are simply created to make life easier in the unfortunate event of divorce. If divorce does not occur, then the pre-nup can simply be forgotten about and the couple can get on with living happily ever after.
Many claim that pre-nups lack romance; however, surely the definition of romance changes with time. The fact that a couple can sit down together and reach a fair and respectful agreement may actually be seen as romantic in today’s day and age. Ultimately, people’s opinions of pre-nups will be based on how they are defined. If they are described as an arrangement allowing one spouse to ring-fence their assets from their other half, then understandably they appear repellent. However, if they are used in a loving manner to ensure that a fair and equitable arrangement is put into place to deal with the possibility of divorce, then it is easy to see their benefit.
Of course, it is up to each couple individually to decide whether they wish to enter into a pre-nuptial agreement; however, in the event they choose to do so, as long as certain precautions are taken, the parties will be able to reap the benefits. Such precautions include ensuring that the agreement is entered on an equal footing by each spouse taking independent legal advice. Full financial disclosure by each spouse must also take place to ensure that the agreement truly reflects each party’s financial position. Timing is key too, as the terms of the agreement should not be rushed and each party should have enough time before the wedding to contemplate whether they are happy with the pre-nup’s content. Once the couple have agreed the terms of the pre-nup, they will be able to relax in the knowledge that the ‘trivial’ stuff has been dealt with, leaving them free to make much more important decisions – such as whether to have a chocolate or vanilla sponge wedding cake.
To find out further information on pre-nuptial agreements, contact us or call 0161 832 3434.