Let us be honest, “scepticism about marriage” is quite often scepticism about marital breakdown and the way in which a couple’s financial affairs will be handled in that event.
I am not one for mass classifications but, having grown up in North Yorkshire, it is true that people from Yorkshire are blunt of speech though warm of heart. It is for this reason that when I am constantly asked if being a family lawyer makes me sceptical about marriage I simply say, “no, I can get a prenup”. That is not to say that I will or that everybody should. It is simply to say that since the landmark decision in Radmacher v. Granatino in 2010 a pre-nuptial agreement between my partner and I would be enforceable if:
- Each of us freely enters into it;
- We both agree the terms of the prenup with full appreciation of its implications;
- there are no prevailing circumstances that would make it unfair to hold us to the terms of the agreement.
I once read an article entitled “If you want a prenup, you don’t want marriage”. With respect, it is this misguided belief that may have contributed to (but by no means caused) the 8.6% decrease in the marriage rate.
Many would-be spouses may shudder when their other half utters the word “prenup” but what, really, is there to be scared about? Is having a document that defines the parameters of the division of financial assets on divorce not less scary than playing Russian roulette with the wide-ranging discretion of a judge? The point is that prenups can allow for greater certainty.
What about the predicament of real need? In Radmacher the court held that spouses are unlikely to have intended that one of them be left in a “predicament of real need” or destitution. Many of us, at least at the outset, would agree that our partners should not be. Those of us who don’t, don’t want marriage.
Both parties should seek independent legal advice before entering into a prenup. Indeed a post-Radmacher case confirmed that parties will need to have received at least enough legal advice to appreciate what they are giving up before they will be deemed to have full appreciation of the implications of a prenup.
Any prenup should be carefully drafted by a family specialist. Moji is a consultant family law solicitor who is able to advise on any issues you may have relating to pre and post-nuptial agreements.