Should I say yes to a pre nup?

Posted: Tuesday May 22 2018

By: Guest Blogger

Should I say yes to a pre nup?

By Emma Davison 

We are just weeks away from the marriage of Prince Harry and Meghan Markle.

On 19th May 2018 the sixth in line of succession to the British throne will marry his American actress girlfriend in what is likely to become one of the most watched events of 2018.

Reports suggest however that despite him being one of the country’s most eligible bachelors, Prince Harry has, like his brother Prince William before him and despite their parents’ very public and bitter divorce, declined the need for a prenuptial agreement.

In a country where the latest official statistics claim that 42% of all marriages end in divorce with around half of the same being expected to occur within the first 10 years of marriage, Prince Harry’s decision may come as a surprise. 

So, what is a prenuptial agreement?

A prenuptial agreement is, not least in Ms Markle’s country of origin, arguably fashionably the “norm” for couples who are engaged to be married.

It is an agreement entered into by a couple in anticipation of their marriage which concerns the ownership of their respective assets in the event of the intended marriage ultimately failing.

Despite being perceived as a document which historically has only been used by the rich and famous, prenuptial agreements are becoming increasingly popular in the UK for couples from all backgrounds. They are frequently used where parties to a marriage come from different financial backgrounds or standing, they have experienced difficult and traumatic divorces in the past or have children from previous relationships who they wish to ensure are financially protected.

Are they legally binding?

Despite being commonly used, prenuptial agreements are still not currently automatically legally binding in England and Wales. By entering into a prenuptial agreement, a couple remains unable to totally exclude the Court’s ability to decide how their finances should be divided on any future divorce.

However, when considering a financial application alongside a divorce, if there is a prenuptial agreement in place this will still be considered as a material factor by the Court. The Court is tasked with giving the appropriate weight to the existence of the prenuptial agreement as a relevant circumstance of the couple’s marriage.

Provided the prenuptial agreement has been entered into freely by both parties with a full appreciation of its implications and is deemed fair, it is likely to be upheld by the Court. For this reason, anyone entering into a prenuptial agreement should do so with the full expectation that it will be honoured by the Court on any future divorce.

Against a backdrop of a divorce rate steadily approaching one half of all marriages, it is always advisable for any engaged couple to each seek independent and specialist advice from a family lawyer and consider whether a prenuptial agreement should be put in place. Afterall, this could be the only chance they will have to exert some control and influence over the division of their finances in the future should the marriage fail.

So Should I say yes to a pre nup? Only you know the answer to that.

Read more from Stowe Family Law on Pre-nuptial agreements why, when and how, click here

# Should I say yes to a pre nup?