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Family Law Blog

Comment on divorce & family law 

Pre-nups: the pros and cons

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It seems to me that romantic notions are the bane of the pre-nuptial agreement. Think on this: you don’t want to, or plan to, crash your car, and yet you have car insurance (yes, I know it is the law but stick with me). You don’t want your plumbing to explode and flood the house, but you have insurance to ensure it can be sorted easily if the worst happens. And the last thing you want is for the cat to get injured, but you may well pay a small fee each month so that vet bills are taken care of if she is.

So why not see a pre-nup as insurance against something bad happening in your marriage further down the road? You don’t want it to, or expect it to, but it might just happen and could help save money and enable you to sort out many things more easily and quickly if it does.

Why then do we view pre-nups differently from health or pet insurance? Surely it can only be that it is seen as unromantic to prepare for the end of a relationship while caught up in the romance of a blooming coupling? How do we overcome this hurdle and get the message out that this is a sensible and normal thing to do, not just the reserve of the rich and famous? That is the tricky question. Would calling it marriage insurance help things? I doubt it!

When you marry someone, your assets become joint assets, regardless of who brought what into the relationship. Therefore, if there is a split, all the assets will need to be divided also. This can cause problems for many as they argue over who should get what, who brought what to the table at the start, and who needs specific help in their future life, eg it may well be better for the mother to stay in the family home with the children rather than to sell it to split profits.

Drawing up a pre-nuptial agreement before you get married – or even a post-nuptial agreement once the big day is over – can settle all this from the start and while the parties concerned are certainly in a more conciliatory mood than they are likely to be when going through a divorce.

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It is worth pointing out that currently in England and Wales, pre-nups are not absolutely binding in law. That said, recent case law has shown that when both parties are properly advised on the document, and it is properly drawn up, a court will take the contents as a clear pointer to a settlement. Of course, what a couple decides in happy times and what they then want to see happen if things go wrong, can be two very different things. It is also possible circumstances may have changed during a marriage, either through different financial circumstances or the arrival of children, for instance, so ultimately a court may be called on to make a judgement that is a departure from the document drawn up. That should not detract though from the weight a properly drawn-up pre-nup can bring to a settlement, even if it ends up simply ensuring that you get back possessions that are important or safeguards a particular asset for your children.

Kimberley Bailey
Family solicitor, Bristol

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