Couples preparing to enter into marriage have long been able to draw up a pre-nuptial agreement, or pre-nup, to establish how assets should be shared in the event of a divorce.
While many people’s only knowledge of these agreements will come from American celebrity couples, such as Michael Douglas and Catherine Zeta-Jones, the practice of pre-nups has been gaining traction on this side of the Atlantic too.
At present however, pre-nuptial agreements are not legally enforceable. Though they can be used as guidelines in divorce settlements, an agreement is not strictly a legal document like a contract.
But this may change in the near future, as a committee of law reform advisers prepare an outline for a law to give pre-nuptials legal standing.
A proposal on ‘Matrimonial Property, Needs and Agreements’ is expected this month from ministers.
Should the proposals come into law, the 250,000 couples who marry every year will have the ability to secure legally binding settlements before they commit. But some say the very idea of pre-nuptial agreements undermine the institution of marriage.
Though they are intended as a kind of safety net to prevent an unequal division of money and other assets in the event that the a split becomes necessary, the idea that a couple would deem it necessary to agree on these terms beforehand seems to indicate a lack of commitment from the beginning.
And many couples decline to make one for the same reason. Paul McCartney and Heather Mills did not draw up a pre-nuptial agreement – McCartney later said it would have been ‘unromantic’to do so. Mills was awarded £24 million when the couple’s four-year marriage ended.
When a document such as a will is (quite rightly) considered a legally binding statement of intent, pre-nuptials currently are upheld on a strictly optional basis, making them a fairly poor safety net. It’s only in 2010 that the Supreme Court officially ruled that they can be taken into account at all in the event of divorce.
This followed the case of Nicolas Granatino, who managed to get his divorce settlement reduced by 80% based on a pre-nup. In his ruling, the judge concluded, ‘It will be natural to infer that parties entering into agreements will intend that effect be given to them.’
It is in the spirit of this ruling that pre-nuptial documents are expected to be granted the authority they arguably deserve.
At present, over 40% of marriages in the UK end in divorce.