‘Loyalty’, Prenups and Divorce 

Published on 11 December, 2017 | Sam Hall

Despite perceptions to the contrary, marriage is not exactly going out of fashion.

Admittedly, the numbers of couples choosing to formalise their relationships in England and Wales each year is not exactly as large as the 426,241 who married in 1972.

However, the near quarter of a million weddings in 2014 – the most recent year for which official statistics are available – constituted an increase of 12,000 on the year before https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2014.

Even though the vows taken by all those individuals have changed over the years – with, for example, the pledge to obey each other falling out of favour in recent decades – the critical element of fidelity has been a permanent part since they were apparently first commonly used in medieval times http://www.historyextra.com/article/feature/love-and-marriage-medieval-england-customs-vows-ceremony.

In an age of when 42 per cent of marriages are likely to end in divorce https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016#what-percentage-of-marriages-end-in-divorce, the idea of loyalty would seem to be under severe stress.

Furthermore, about half of those break-ups occur in the first 10 years of marriage.

Those statistics provide interesting context when we look at one increasingly frequent detail of contemporary marriage; namely, the prenuptial agreement.

The documents gained particular currency following a 2010 UK Supreme Court ruling in the case of a German heiress, Katrin Radmacher. Her French financier husband was prevented from making a larger claim on her fortune when he was held to the terms of the prenup which they both signed before their eight-year marriage http://www.bbc.co.uk/news/uk-11580907.

A prenup, though, is not a free-for-all. They are guided by the same principles of fairness and need enshrined in the last major reform of divorce law – the Matrimonial Causes Act, which entered onto the statute book the year after marriage reached its early 1970’s record.

In determining whether settlements were fair, that law required courts to take the length of marriage into account. Generally speaking, the financially-weaker spouses would receive a greater proportion of joint marital assets the longer that they are married.

The Radmacher judgement reinforced that prenups needed to take such requirements into account by not having simple, fixed sums but stepped payments which increase in size the longer that a married couple stays together.

Most involve amounts corresponding to wedding anniversaries every five years, something which seems to be of more than mere administrative relevance.

Myself and my colleagues at Hall Brown Family Law have noticed a distinct link between the incremental increase in entitlement – or, as some have more simply put it, “loyalty payments – and the volume of divorces.

In fact, as I’ve been telling Steve Doughty, the Daily Mail’s Social Affairs Correspondent http://www.dailymail.co.uk/news/article-5161307/Spike-divorces-blamed-prenup-cash-ins.html, the issue of anniversaries and entitlement is a factor in almost 10 per cent of marriages collapsing.

We have seen a recent surge in wives deciding to end their marriages after reaching wedding anniversaries entitling them to greater incremental proportions of their husbands’ wealth in the event of a break-up.

The notion that some spouses might almost diarise the issuing of petitions to increase or mitigate the amount which they might either receive or be required to pay out on divorce might be taken to support the unromantic reputation which prenups have.

I would suggest, though, in spite of the cases which I’m referring to, prenuptial agreements can play a considerable role in defusing the potential for acrimony which is a feature of some divorces.

They provide a structure for how spouses divide their assets, even if they do not necessarily eradicate it altogether.