Before you say “I do”

By Hannah Bibby at 15:00

Hear the term "prenup" and it may just conjure up images of A-list celebrities, star-studded weddings - or their subsequently messy divorces - but the reality is that prenuptial agreements are becoming increasingly popular amongst couples who may not have millions sitting in the bank.

Though many fear that a prenuptial agreement is simply about expecting a worst-case scenario, ie divorce, a couple's need for such an agreement isn't based solely on their income or assets.

Traditionally, a prenuptial agreement would determine the fate of a couple's assets. For example, property. It may also address any financial obligations held as a couple, such as debt.

It’s very common these days for couples, even on lower incomes, to hold debt from credit cards, university or college fees, personal loans and so on. So, it would be wise to segregate these debt obligations and discuss whose income will be used to pay them so everything – remember it can be easier to have these conversations when you are most aligned with each other and not further down the line should the relationship faces any stumbling blocks.

Prenuptial agreements are entered into freely by couples prior to their marriage and are referred to in the event of separation and divorce proceedings.

You may think that having an agreement in place makes things easier, sadly, it is not always that simple! 

In the event that the marriage fails, and one of the couples no longer wish to be bound by the terms of the prenuptial agreement they are not, prevented from making an application to the Family Court in respect of finances.

You may be thinking why would the courts not uphold an agreement that the couple entered into freely, knowing what each other owned and earned before marrying?

Initially, it was believed to be against public policy to allow a couple who are about to marry to make an agreement about what would happen should they split. The primary reason being that by having the agreement about what would happen if they separated, would encourage them to do just that.

Over time there has been increasing weight given to the authority of prenuptial agreements. This, of course, raises the question, how much weight should be given and how should the court approach the task of deciding this?

This brings me to the 2010 case of Radmacher v Granatino. Infamous in the world of family law.

It was held that the court should give effect to an agreement entered into freely by each party with a full appreciation of the implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

There is much debate around the opportunity for law reform in this area. In 2014 a draft Nuptial Agreements bill, which included a provision for ‘qualifying nuptial agreements’ was proposed however the justice minister at the time stated that consideration of this bill would be postponed.

Lord Wilson has recently entered the debate and has stated that he believes that the law surrounding prenuptial agreements may need further consideration.

Those seeking to make an agreement about what will happen to their finances should their marriage fail are often looking for certainty. The fact that there is a level of uncertainty as to whether their agreement will be upheld by the courts on the breakdown of their marriage is clearly unsatisfactory.

On the other hand, many feel that couples should not be able to potentially disregard the law that contains mechanisms for the division of assets on divorce and agree on something completely different.

These agreements certainly don’t scream ‘romance’, after all, they are asking a couple to decide what will happen should the marriage fail, usually just months before they tie the knot. This in itself may lead to a party, who may not have assets or income themselves, feeling pressurised into signing an agreement to prevent  ‘rocking of the boat’ if they were to refuse to sign. If these agreements were strictly enforceable it may lead to some parties being very hard done to.

The debate continues, and it appears that unfortunately, consideration of any reform in this area is not top of the agenda. Nevertheless, couples entering into prenuptial agreements are on the increase!

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Hannah Bibby

Hannah Bibby , Legal Clerk

As a Legal Clerk within the Family department Hannah provides legal support and assistance to the team and clients.

Hannah deals with a wide range of family law matters, including parental disputes, child contact and domestic abuse.

Hannah is sensitive towards the issues that surround modern family law and approaches these issues with care.

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