Published on 15 February, 2024 | Rebekah Edwards

Around this time of year, love is, to quote the title of one hit song, “all around”.

In fact, whether you’re in a relationship or not, the volume of Valentine’s and spring-themed marketing is so all-pervasive that it can be hard not to ruminate on romance.

I don’t wish to be the person who blunts Cupid’s arrows but I think that whilst love and trust are essential components for any couple, there needs to be some reality too.

It’s an importance which I was reminded of only recently, having read newspaper articles featuring the singer and celebrity Peter Andre.

He has described being so in love with his wife, Emily, that they weren’t able to bring themselves to put a pre-nuptial agreement in place (https://www.mirror.co.uk/3am/celebrity-news/peter-andre-reveals-second-wife-32039260).

“I knew I was going to stay with her forever”, he said, “so it doesn’t matter”.

There are doubtless many individuals who would applaud Mr Andre’s resolve.

Even so, I am only too well aware that other couples have professed undying affection in a similar vein, only for their marriages to end in divorce.

The most recent figures published by the Office for National Statistics (ONS) make that abundantly clear (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

According to that data, 41 per cent of marriages are over before couples can celebrate their silver wedding anniversary.

Now, I don’t doubt the sincerity of Mr Andre’s commitment to Emily but it’s impossible to ignore that he made the same sort of comments before his first marriage to the model Katie Price ended in divorce (https://www.dailymail.co.uk/tvshowbiz/article-1222356/Peter-Andres-relief-divorce-Katie-Price-finalised.html).

Just as unavoidable as the toll of his and other broken marriages is the fact that many couples find pre-nups – and, for that matter, post-nups – to be of great value.

In that respect, Mr Andre’s remarks go very much against the grain.

It is true that there are those who regard discussions about pre-nups and financial planning as rather unromantic when talk turns to setting up home for a life together.

Yet, if approached in the right spirit, couples appreciate how important they can be in defusing the kind of difficult discussions which might arise when a marriage actually breaks down.

More and more couples of far fewer means and far less profile than Mr Andre and his celebrity peers recognise that pre- and post-marital agreements can establish something of a roadmap for a friction-free and far less costly divorce.

It is important, of course, that each party has their own legal advice to consider what resources are available and how respective needs might be met in the event of a divorce.

I should point out that whilst a major Supreme Court decision in 2010 made clear that properly composed pre- and post-nups should be given “decisive weight” when it comes to determining the division of joint marital assets on divorce (https://www.supremecourt.uk/cases/docs/uksc-2009-0031-judgment.pdf), they are still not legally binding.

Agreements which are considered fair and to have been entered into properly are now, however, likely to be upheld.

In 2014, the Law Commission recommended that they should be made (https://lawcom.gov.uk/project/matrimonial-property-needs-and-agreements/) but that advice was not taken up by the then Coalition government.

There have also been several unsuccessful attempts to give them the full weight of law via Private Member’s Bills in recent years (https://researchbriefings.files.parliament.uk/documents/SN03752/SN03752.pdf).

Some individuals have suggested that a Law Commission review of the law governing the financial aspects of divorce, due to be delivered later this year (https://lawcom.gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/), will provide sufficient clarification as to how separating spouses split their assets.

Although the potential reform of this vital part of divorce law is to be welcomed, I expect that there may still be disagreement.

In my experience and that of my colleagues, most of the rows which occur when a marriage ends are in relation to finances and particularly about what a fair settlement might look like in the context of a couple’s individual circumstances.

In addition to clarifying the process by which that happens, any changes which may result from the Law Commission’s work will naturally want to uphold the reputation of family courts for fairness.

What exactly fairness means in any one case, though, comes down to a judge’s reading of the specific facts.

Allowing them the discretion to do so, therefore, does introduce an element of uncertainty but I believe that is preferable to a rigid, ‘one-size-fits all’ approach.

Reform and the retention of discretion are, in this regard, not incompatible.

Many more people than in previous years now understand that they don’t necessarily need to wait for new legislation to have clarity about what might happen should they divorce but can simply enter into a nuptial agreement.

It is another very common reality which leaves Peter Andre loved up but very much out of tune.

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