To many Britons, prenuptial agreements seem awfully American. But as with most things American, they have managed to find a home on this side of the Atlantic. Like them or not, prenuptial agreements are being used more and more by young couples in the UK. The question is, are they even worth the paper on which they are written?
The short answer is yes, prenuptial agreements are worth something but in Britain they are not yet legally binding. The divorce process can be very messy. Lawyers are often required to deal with complex disputes involving deeply intermingled financial affairs, personal possessions, intangible assets and children. Prenuptial agreements cannot make provisions for all these disputes. Some arguments cannot be resolved simply by examining a sort of personal contract that was drafted before marriage. Opinions, hopes and aspirations change over time, so why should people bind themselves to a document made at a time when they potentially knew very little about love, marriage or even life itself?
Contract law does sometimes penalise the nave, but family law is meant to reach solutions that benefit all parties. No judge in the UK is likely to rely solely on a prenuptial agreement, if only because its terms may heavily favour one person over the other. There is no equitable solution to a problem in which one side receives everything and the other nothing and equity is of crucial importance to the family courts. So what use are prenuptial agreements in the UK?
Matrimonial Causes Act 1973 (MCA)
The MCA can be relied on by couples in Britain who decide to divorce. The statutory provisions contained in the legislation aim to provide divorcing spouses with the means by which certain legally enforceable agreements can be made; for instance, the MCA might be relied on to negotiate property and maintenance rights. The judge does not rely only on the statutory instruments available, however. On the contrary, a long list of criteria, prenuptial agreements not excepted, have to be taken into consideration.
Judges and divorce lawyers should pay regard to the wishes expressed in a prenuptial agreement as part of the overall decision-making process. Knowing what the bride and groom agreed on as they prepared to enter married life together is important because it provides the judge with evidence of their expectations at the time. Though expectations change, the agreement made between two people ought to be considered alongside all other relevant criteria.
Are Some Prenuptial Agreements Better Than Others?
Some prenuptial agreements really are not worth the paper on which they are written. This may be so if the bride and groom hastily scribble some thoughts on to a sheet of paper immediately before they wed. The divorce courts require a document that is objective, precise, deliberate, honest and sufficiently premeditated.
With this in mind, it is sensible for couples to discuss their expectations plainly before marriage not immediately before, but at least several weeks or months ahead of the big day. Prenuptial agreements must also state very clearly what either side wants. Ambiguity is only likely to frustrate a judge, prompting a disregard of the agreement in favour of more traditional criteria (examination of living arrangements, financial dependence, etc.). A prenuptial agreement must also demonstrate full material disclosure if it is to be accepted by a judge, while the more balanced, fair and precise an agreement is the better.
In summary, prenuptial agreements are not yet binding in the UK, but they can influence the judge’s decision in the interests of justice and equity.
This article was written by Robert, an ardent blogger and freelance writer who is currently writing for a number of top law companies. Find Rob on Twitter at www.twitter.com/rgwe.