Pre-nuptial agreements are no longer the preserve of the super-rich. Their use is rising rapidly, particularly among younger generations, and the once-controversial contracts are now seen as a sensible way to plan for a responsible future. Jack Dodd, associate solicitor in the family law team at Blacks Solicitors, and Sarah Ward, head of family law at Ramsdens Solicitors, shared their thoughts on the increasingly common contracts with Today’s Family Lawyer.
The number of couples signing pre-nups has more than doubled in the last 30 years to hit one in five.
In the UK, 20% of couples now sign pre-nups, up from just 8% in the 1990s, according to a survey by the Marriage Foundation.
Jack Dodd, associate solicitor in the family law team at Blacks Solicitors, says that along with agreements ahead of marriage, there has also been “a notable rise” in “post-nuptial agreements.”
“Agreements such as pre- and post-nups are no longer seen with the traditional view of ‘mistrust’ but a sensible mechanism for clarity and risk management in the event of a relationship breakdown,” he says.
While pre-nups have historically been the preserve of the super-rich, couples with average incomes are apparently increasingly asking solicitors to draft them.
Sarah Ward, head of family law at Ramsdens Solicitors, says: “Pre-nuptial agreements were once associated with celebrity marriages and vast fortunes, but attitudes are changing rapidly.
“Increasingly, couples are viewing prenups as a practical way to protect family assets and businesses to plan responsibly for the future, rather than a selfish act anticipating future marriage breakdowns.”
Dodd claims that with the average age of first-time buyers rising, and more individuals buying homes independently before marriage, his clients are “entering relationships with significant pre-acquired assets and a heightened awareness of financial risk”.
Pre-nups aren’t automatically legally binding in England and Wales. However, the family court is likely to give these agreements significant weight if they are drafted properly.
Currently, courts in England and Wales consider factors outlined in section 25 of the Matrimonial Causes Act 1973 and schedule 5 of the Civil Partnership Act 2004 to determine financial settlements following divorce or dissolution. Such factors include each party’s income and responsibilities.
While pre-nuptial or post-nuptial agreements are not automatically enforceable, a landmark 2010 Supreme Court ruling determined that courts should give effect to such agreements, provided that they are entered into freely by both parties with a full understanding of their consequences, unless doing so would be considered unfair.
In February last year, the Law Commission recommended in its scoping report a need for “qualifying nuptial agreements” that would make them enforceable if specific safeguards were met.
Ward says: “The legal position of pre-nups in England and Wales has evolved significantly over the last decade. Whilst prenuptial agreements are not automatically legally binding, the courts increasingly recognise them provided certain safeguards are met. Broadly speaking, agreements are more likely to carry weight if both parties entered into them freely, received independent legal advice and fully understood the financial implications.
“The courts will also consider whether the agreement is fair and whether it properly provides for any children. As a result, modern prenups are carefully drafted documents tailored to the couple’s specific circumstances rather than rigid contracts designed to disadvantage one party.”
Dodd expects that if statutory change comes it “could provide couples with greater confidence in proceedings, knowing that financial outcomes are clearer and more predictable, likely incurring a further increase in popularity”.
Ward remarks on the shift in tone of the conversation, which she describes as couples “no longer approaching prenups from a position of mistrust or defensiveness”.
Part of this change is generational, according to recent research from Handelsbanken Wealth & Asset Management, which reveals that 40% of 18 to 35-year-old newlyweds have a pre-nup, compared with just 10% of the wider population.
“Public attitudes have softened considerably, and many people no longer view prenups as a taboo subject – a shift which has been reflected in the growing number of younger couples seeking advice before marriage,” says Ward.
“Couples today tend to have more open discussions about money before marriage than previous generations. Many have lived independently for years before getting married, bought property in their own name or established careers and businesses before meeting their partner. It is therefore entirely understandable that they may want clarity about how those assets would be treated in the future.”
