Pre-Nups And Profile
Published on 08 April, 2022 | Judith Klyne
It is fair to say that family law in England and Wales does not change as quickly as the circumstances within households in either country.
As my colleague Claire Reid pointed out earlier this week, the Divorce, Dissolution and Separation Act (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) which has now come into force – heralding the introduction of ‘no-fault’ divorce – is the first major reform of divorce law in half a century.
The ‘no-fault’ law only made its way onto the Statute Book after a lengthy public campaign.
Attempts to advance other legislative causes have, as yet, failed to bear fruit.
One is the campaign to secure full legal status for pre-nuptial agreements, documents which are seen by many well-informed commentators as a vital complement to the new process which removes the need for spouses to blame each other for the breakdown of a marriage.
Pre-nuptial and post-nuptial agreements – or marital contracts, as they’re collectively described – provide a structure for how a couple will divide their assets in the event that their marriage doesn’t last.
Given that figures released by the Office for National Statistics (ONS) in February showed that 42 per cent of marriages have ended in divorce before the spouses involved reach their silver wedding anniversary (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020), some see pre- or post-nups as eminently practical.
They were historically regarded as the preserve of wealthy individuals seeking to protect the assets which they were bringing into a marriage.
However, it arguably wasn’t until 2010 and the Supreme Court’s decision to uphold the pre-nup put in place by the German heiress Katrin Radmacher (https://www.supremecourt.uk/cases/docs/uksc-2009-0031-judgment.pdf) that their merits began to be appreciated by a much wider group of individuals.
Even so, that ruling only concluded that properly drawn up pre-nuptial agreements should have “decisive weight”.
The Law Commission produced a report in 2014 recommending that “qualifying nuptial agreements” should be made fully enforceable by the UK’s parliament (https://www.lawcom.gov.uk/project/matrimonial-property-needs-and-agreements/).
“We await”, wrote the Commission, “Government’s final response”.
Eight years on, there has still been no real answer of any note. That is despite one peer, Baroness Deech, warning only last month that failing to simplify how divorcing spouses divided their assets would mean that “the no-fault divorce law will fail to achieve its aims” (https://hansard.parliament.uk/lords/2022-03-15/debates/BC02FFFB-62A6-4BB6-B6BC-C1EC62CFD46E/No-FaultDivorce).
In fact, Baroness Deech is so convinced of the merits of pre-nups in helping avoid possible conflict when it comes to asset division that she introduced a Bill in the House of Lords (The Divorce (Financial Provision) Bill – to try and make the documents “binding” (https://hansard.parliament.uk/lords/2018-05-11/debates/89A33706-7DCD-4FA0-AE0D-B06E11FAF264/Divorce(FinancialProvision)Bill(HL)).
As the ‘no-fault’ law has proven, outside pressures can produce the kind of quick results which debates inside the palaces of Westminster may take longer to accomplish.
I wonder, therefore, whether this weekend’s wedding of David and Victoria Beckham’s eldest son, Brooklyn, to the model and actress Nicola Peltz might add to popular pressure for pre-nups to have full legal weight.
It has been reported that the couple has signed a pre-nup (https://www.mirror.co.uk/3am/celebrity-news/brooklyn-beckham-nicole-peltz-sign-26621929), something which I suspect is may be due to the considerable wealth of their respective parents.
While Mr Beckham’s parents have accumulated an estimated £380 million fortune from football, modelling, fashion design and pop music, Ms Peltz’s father is a billionaire businessman and investor.
Having two figures so well-known to the gossip pages put a pre-nup in place will, I believe, do marital contract campaigners no harm at all.
Between them, the couple has more than 14 million followers on Instagram. Their endorsement of pre-nups might even persuade those who are interested in their lifestyle to follow suit.
In my experience and those of my colleagues at Hall Brown, pre-nups are certainly more democratic than in previous generations.
Younger couples of rather smaller means regard them as being a sensible part of their preparations for marriage.
As I’ve mentioned, many marriages sadly fail. However, pre-nups and post-nups provide a way to divide what people bring into a marriage in a practical fashion. In that sense, they function like insurance: you hope that you’ll never have to use it but it’s helpful and to hand just in case.
Even without having the weight of legislation behind them, marital contracts already have a bearing on how courts determine the division of a couple’s assets.
They are likely to be upheld if they are found to be fair, not to have been signed under duress and to have been put in place by individuals who knew what they were entering into.
Whilst statute and not a mention on the society pages of newspapers in the UK and the US is the firm objective of pre-nup campaigners, the support of the Beckham family will keep the issue in the public domain.