There is a perception that prenups are only for the fabulously wealthy, which is understandable with the press full of speculation of a Trump prenup, and rapper Dr Dre currently disputing his wife’s claim that he tore up his prenup 20 years ago, leaving the entirety of his c. $800 million fortune available for division in their divorce, but a prenup is a valuable tool to consider when organising joint finances, and isn’t just for the rich and famous.
Getting married inevitably involves a huge amount of planning these days. The dress, the cake, the venue, the guest list, all carefully curated well in advance, often at considerable cost to the couple getting married. As a result, wedding insurance is considered a no brainer in case something goes wrong. But what about marriage insurance, ensuring some security and surety in what happens if the relationship starts to go wrong?
Enter prenups – in the wise words of Kanye West: “It’s somethin’ that you need to have ‘Cause when she leave yo’…she gon’ leave with half.”
A prenup(tial agreement) is, in essence, a contract signed pre-wedding, which records how matters will be dealt with if you separate in future. They can’t oust the power of the Court completely, but Judges must consider and give effect to a prenup unless it would be unfair to do so.
This ensures they are recognised if it is clear the parties intended to be bound by the terms and there is no reason to deviate from them, but also protects spouses from the risk of an unfair outcome as a Judge can step in and overrule a prenup, either in whole or in part, if necessary. It is therefore essential to get a prenup right at the drafting stage to ensure it is fair and avoids problems later, and a solicitor can help with this.
Without a prenup, the starting point is that assets built up during the marriage or ‘mingled’ into the joint assets (which can include inherited funds, gifted money from parents, lottery wins, pension funds or property you owned before the marriage) will be divided equally. What you are therefore aiming to do is to find a fair and agreed way to recognise that some assets should be treated as separate from what you are building up together.
So, if you’re not a celebrity or millionaire, when might you want a prenup agreement?
- If one spouse brings something of value into the marriage – for example, a house or a business, even if it is just a start up. It could end up being the next Amazon, so just in case, it is wise to protect the initial investment of time and money which may have gone into it pre-marriage, as this sometimes takes some time to realise financially.
- For joint property, to be clear what shares it is held in, especially if there are third parties involved – for example, if a parent put in the deposit money, are they expecting this to be repaid, or was it a gift? If it was a loan, is it being repaid from proceeds of sale, or over time?
- If one spouse is, or expects to be, a higher earner than the other or it’s agreed one will have more responsibility for childcare, as the financially weaker spouse may want assurances they will be provided for in the event of marriage breakdown.
- If one spouse anticipates receiving an inheritance, such as property, a farm, or a notable lump sum.
- To cover matters the Court prefer to avoid, such as:
- Pets – With demand (and prices) for puppies shooting up at present, an agreement on how to look after them and who is ultimately responsible for the pet if you separate is worth considering, as illustrated by Ant McPartlin and Lisa Armstrong who had a very public dispute over their Labrador Harley. ‘Petnups / Pupnups’ have been growing in popularity for this reason. Read more about them here.
- Personal belongings: Antique furniture, artwork, jewellery, your vintage vinyl collection. There is even a picture on the internet of a couple in the 90s crouched on the floor of the courtroom dividing up their TY Beanie Babies collection. These things may be priceless to the owners, but the sad reality is that the court simply don’t have time to dig into such issues if they are disputed, unless the belongings are of significant value, in which case the Judge may decide the fairest and simplest solution is for them to be sold and the proceeds divided. Agreeing from the start can avoid such disagreements, and ease the process of separation, even if it as simple as ‘belongings will stay with the person who purchased them’.
So abandon all perceptions, ye who enter here, of movie-style prenups intended to punish or penalise, and instead think of it as a way to enter marriage as two mature adults willing to discuss the difficult issues and agree a sensible way forwards. And if nothing else, prenup discussions are a very good way to gauge if you’re on the same page in terms of your expectations, before you commit to a legally binding marriage.
If would like to speak to someone about a pre-nuptial agreement, please contact either Heather Snowdon at hsnowdon@jacksons-law.com 01642 356500 or Beth Courtney-Walker at bcourtney-walker@jacksons-law.com on 0191 2322574.
Beth Courtney-Walker, Solicitor, Family
