All I want for Christmas is you - and a prenup.
Prenuptial agreements try to dictate what will happen, particularly to your money, if your marriage breaks down at some future date. So they are hardly romantic, but many people want them.
They seem to be popular with people who are marrying for a second time, they may have children from a first marriage, and they don’t want the children to lose their inheritance if the second marriage doesn’t work out. Also younger people are often encouraged to have a prenup if their parents intend to help them out financially, but don’t want to see the new son-in-law walk off into the sunset with the benefit of their generosity.
Prenuptial agreements are common in many countries but they are problematic in English law, because they sit where two tectonic plates meet. On the one hand English law is very keen on contracts and the idea that people should be held to their agreements. On the other hand, in the context of divorce law, the courts always have the last say in determining what is a fair financial arrangement between a divorcing husband and wife.
Until about 10 years ago, the conventional wisdom was that prenuptial agreements were really not worth the paper they were written on because the divorce courts would routinely overrule them. But that began to change with a famous case called Radmacher-v- Granatino . At the time of the marriage Ms Radmacher was the heiress to a hugely wealthy German family. Mr Granatino was a bright young investment banker in the City, with a great future in front of him. They signed a prenuptial agreement, which was quite common at the time in Germany, stating that if their marriage broke down he would make no claim on her inherited fortune. When they divorced 9 years later things had moved on a little., Mr Granatino’s career had evidently not followed the stellar trajectory he hoped for, and he was working as a university lecturer. They had three children who were living with him. The case was fought through the courts doubtless at huge expense. But in the end the Supreme Court ruled that the prenuptial agreement should, largely, be upheld, and he received a significantly smaller settlement than he would have got, but for the separation agreement. This was a turning point.
Since then the tide has run in favour of prenuptial agreements. There has been a series of cases, many of them involving prenuptial agreements signed overseas, where the English courts have, by and large, upheld them. So the conventional wisdom has become that prenuptial agreements are, on the whole, a good idea.
But they need to be drawn up very carefully, if they are going to withstand scrutiny of the courts in the subsequent divorce. Each of you really needs to be advised separately by an independent solicitor who specialises in divorce and family law. The solicitor can guide you through the process and make sure that your agreement has the best possible chance of standing up.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.