Prenuptial Predicaments 

Published on 03 January, 2018 | Sam Hall

Even as households across the country prepare to take down the Christmas tree and put away the tree and tinsel for another year, family lawyers like myself are already looking ahead to what the next 12 months will bring.

One milestone is apparent: 2018 marks the 25^th anniversary of the peak in divorce numbers in England and Wales.

According to the very latest figures produced by the Office for National Statistics (ONS), the 106,959 couples who divorced in 2016 marked a reduction of nearly 60,000 on the corresponding number for 1993 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016.

There is a variety of reasons why the drop has been quite so pronounced.

I might venture that one relates to the relatively greater clarity which an increase in adoption of pre-nuptial agreements provides.

They allow couples to determine the likely terms of a divorce should their marriages not last the distance – something which the ONS has concluded happens to 42 per cent of husbands and wives exchanging vows.

Although they still do not have the full weight of law, they have been afforded more significance since the 2010 Supreme Court ruling in the case of a German heiress whose former husband was held to the terms of their pre-marital contract and was, therefore, prevented from claiming a greater share of her fortune http://www.bbc.co.uk/news/uk-11580907.

Whilst prenups have arguably become as essential a part of marriage planning for an increasing number of couples as the ceremony or reception, they can generate tensions of their own.

As I have been telling the Daily Telegraph http://www.telegraph.co.uk/news/2017/12/25/one-four-couples-consider-pre-nuptial-agreementsdo-not-go-wedding/, just over one-fifth of couples who come to seek our advice about prenups end up breaking off their engagements. A further three per cent of men and women who actually complete the documents do not get married.

That is generally because of the sensitivities involved in discussing one’s finances in full with one’s prospective spouse, even if they might have been living together for some time already.

Some people don’t press ahead after working out how much it might cost to provide their partners with a settlement which the courts agree is fair. There are also individuals who take offence at the very principle of a prenup – considering it unromantic – and those who object to the proposed figures.

Those kind of reactions can – additionally – stir resistance among those people who had initiated enquiries about whether they should have a prenup.

It is, no doubt, distressing for the couples concerned but, I would argue, shows a value to prenups which may well not have been intended in that they highlight very real and serious differences before a wedding which can actually affect the chances of a couple staying together in the long run.

A considerable number of those who decided to call a halt to relationships have told us that they were upset at the time that they did so but later came to realise how much more upsetting they would have been had they gone through with marriage only to see it not last.

They appreciate that saying “I do” is not enough to eradicate issues which may have existed before becoming a spouse. Pre-marital contracts, as is now clear, offer distinctly more certainty even in advance of tying the knot.