Making pre-nups legally binding - is it a good idea?

[JustineMumsnet]

Hi all,
Apparently ministers and planning a change to the law to make pre-nuptial agreements
legally binding. The Evening Standard would like to know whether we think this is a desirable change and whether it might make pre-nups more popular? Please do post your thoughts. Many thanks.

Here is some further background:
News, 4 January
Couples will be able to sign a legally binding pre-nup agreement before
getting married, under landmark reforms being planned by ministers.
The new law will give pre -marriage contracts full legal force for the
first time, the Standard has learned.
It could pave the way for the agreements to become commonplace. Engaged
couples would have the right to draw up legally binding deals to keep hold
of their savings, houses and other assets if a relationship fails.
Post-nup agreements would also be allowed, meaning inheritance gained
during a marriage could be kept by one spouse, rather than split in half by
a divorce settlement.
The reform, being prepared by the Ministry of Justice, risks accusations
that the Government is encouraging marriages to fail. But ministers believe
legislation is needed following a series of court battles.
German heiress Katrin Radmacher opened the way for the review after a court
victory against her former husband Nicolas Granatino last October.
He had tried to block the pre-nup the couple had signed before their
marriage in London in 1998, which said neither husband nor wife would
benefit from the property of the other in the event of a divorce.
But the Supreme Court ordered the deal should be honoured, and backed an
earlier legal decision to slash his divorce settlement from £5 million to
£1 million.
Ministers have now asked the Law Commission to draw up detailed proposals
that will form the basis of a new law.
Increasing numbers of couples are choosing to sign them and changing the
law would give the agreements official legal protection. Paul McCartney and
Heather Mills famously did not sign a pre-nup, and she landed a £24.3
million settlement in their 2008 divorce.
The Law Commission's proposals will be published in the next few weeks, in
a consultation covering pre- and post-nups. The Government is free to
ignore the recommendations, but the Standard has been told ministers now
believe that a new law is necessary.
?Ultimately, Parliament has to take a view because this is too important an
issue,? said one source. ?There are only so many judgments that you can
have. So we have asked the Law Commission to look at all the issues and
produce some recommendations.?
Any legislation would be likely to allow a person entering a divorce to
retain assets they owned prior to marriage, and which had been obtained
without assistance from their spouse. But account would be taken of the
need to support any children that the couple might have had.
Post-nup rules are expected to cover cases where a spouse gains a windfall
their partner had no role in obtaining. Safeguards are likely to counter
the risk that a spouse, most often a woman, might be pressured into signing
away her rights, and to ensure that a non-working partner's contribution to
a couple's wealth is recognised fully.
Currently, pre-nups are not legally binding in Britain, but can be taken to
account by judges in certain cases. Most big London law firms offer a
pre-nup, with the bill typically between £5,000 to £7,000.

I think it's a very good idea. Having gone through a very messy divorce I would never get married without doing a pre-nup. The fact that they are currently not actually legally binding means I just won't get married. I know it's not very romantic but my experience means it is vital for me in order to protect DS. Thankfully, DP knows what I went through with my ex and is very understanding.

Would this apply to co-habitation agreements to? These seem sensible but again, are not legally binding but expensive to draw up.

We are doing one.

Pretending you will never get divorced is burying your head in the sand. The fact is you might and you need to protect your kids, yourself and also your family heirlooms/money.

I am practical and unromantic though. As is my partner. The most exciting thing about planning our wedding has been figuring out how much tax and health insurance we save!! (non UK)

So - a very good idea for women, men and families in general in my view. Could also save a fortune in legal aid payments etc. as court battles are reduced. Maybe not so good for the legal profession?

I can see this as a recipe for increased poverty for wives and children as the wealthier partner, usually the man, coerces the poorer partner, usually the woman, into signing something they don't agree with. Love makes fools of us women, and we might be less than critical of a contract when our eyes are full of stars.

There should definitely be a minimum support for the SAHP and children, below which you cannot sign away your rights in a pre-nup.

Anyway, there is already a way of hanging onto your own assets - don't get married.

I absolutely agree Butterbur, a certain type of man will do anything to hang on to what is his and stuff his wife and kids.

I think it should only come into play with assets that were held before marriage, i.e. if houses were previously owned etc.

The inheritance part sound ludicrous, what would happen in a very long marriage, what if a person was having an affair and could swan off with their inheritance the minute a parent died? Crazy and ill thought out, like most Goverment policy.

Gosh I am a little shocked so many think it is good!

I think it is very bad!

My personal feeling is that if you have to has a Pre-nup you have serious trust issues and shouldn't be getting married.

People's circumstances change after marriage and then again after children and this basically removes the fairness of judging situations based on how they are rather than how they have been. I think the status quo is better.

Reluctantly I agree that it is another example of anti female legislation from this government. It is about the patriarchy being able to retain control of property in a society which is already not equal for men and women and is set to become even more unequal.

Also agree it allows an already powerful partner to use the law to even further control a weaker one... Terrible idea. Agree that if you want to retain ultimate control of your assets you shouldn't get married.

I think it is dangerous - as Curiosity says, circumstances change after marriage/children, and I think that there still needs to be some protection of children in particular. Length of marriage also makes a big difference. A couple divorcing after 25 years should not be held to a prenup agreement made when they were in very different circumstances. Could lead to massive power imbalances.

I agree with Curiosity completely.

Capping solicitors fees for divorce cases would help keep costs down.

"Post-nup rules are expected to cover cases where a spouse gains a windfall
their partner had no role in obtaining. "
I cannot think of any case where this should count.

I can see a place for them, say when people have children from previous marriage etc. but that is more in a protecting the children kind of way than for the adults.

On the whole I think it's a bad idea for women in general.

Mal- couldn't trusts be used instead for that

A windfall, what like a lottery win?

No, I don't.

I think anyone who wants a pre-nup should skip marriage and just live together bound by the 'pre nup'.

Marriage is a contract of partnership and you promise to share everything as one unit. A pre-nup essentially counteracts that - so why bother with promises that you have already declared null and void?

Have a 'we love each other' party of some sort, buy house together, and don't bother getting married!

I have no sympathy with people who whine they have to give away millions (and if you are giving away millions then you must be pretty damn rich, hardly condemned to poverty)o divorce: well you PROMISED. Marriage is a CONTRACT you entered into and now yu are braking it: that's what happens. If you don't want to give it away, don't enter into the contract! It's not as if pelpe have to get married for moral or social reasons these days.

And I don't know why people who have counter-acted their marriage contract with a pre-nup should get the financial and legal benefits of being married - they haven't actually agreed to the legal promise of assets being jointly owned within the marriage.

Sorry - meant 'no I don't think it is a good idea'.

Very good point Blu about why should they be married when the prenup effectively entirely undermines marriage as a legal contract.

I think the idea is that if you have binding prenups it might encourage more people to get married. Which some see as a Good Thing. (not me personally, but you know, bishops and tories and so on).

I think its an awful idea. Undermines marriage and is anti-women imo.
I thought (based on watching something on telly a few years ago so I could be wrong) that the precident had been set for wealth accumulated during the marriage to be split 50:50 if children weren't invloved this seems fair to me, obviously if there are children then the cost of raising them should also be split according to ability to pay - ie higher earner paying out more..

well we both had nothing when we got married.

hwver i did come into a bit when my mother popped her clogs and i looked into lots of legally smeagally type stuff to ensure that i kept it if we divorced.

i went to see a solicitor who said and i quote " you seem to want your cake and eat it"

so anyway i ended up doing nothing, and if we do divorce he'll probably get half of my dead mothers money

but i'll take it out on his tyres. daily.

we are quite happy together, but one had to think of these things.

theres a huge assumption here that men are wealthy and women aren't

its pissing me off a bit.

I know it's a bit early for me to say but I think they are a great idea.

In the position I'm in now I have to make sure the kids are OK if I decide to start another relationship. And that means keeping the house I am fighting so hard for.

I'm never going into a relationship without a back up plan of some sort now. NEVER.

I think custardo that is because men do seem to have more wealth than women.

pisses me off a bit.

that pisses me off too.

but women do have wealth in some instances that they might want to protect.

I think I am in favour of them.

The nature of marriage is no longer what it once was. I think it is viewed as a serious, but not necessarilly, a lifetime committment. On that basis, where each party is contemplating the possibility that the relationship might fail, I think it is legitimate for each to protect what they had before they went into the relationship. I am not however sure that it should be possible to protect any "after acquired" property - property which is acquired during the marriage from whatever source should form part of joint marital property.

This may not be a very palatable view of marraige and far from the way in which many would like to see it, but I think it does represent the reality and the law should therefore acknowledge it.

One of the reasons I'm not married is that I had a house when we got together and dp did not.
And now that we have bought a house together we have a deed of covenant on it, as tennants in common, not joint tennants, stating how much of the house is mine, how much his, and how much owned jointly.

The man women thing isn't just about whether it is the man who is rich, though, it's also about the greater likelihood that a woman interrupts or slows down her career if there are children, or is a sahm to the children, and then many divorcing men want to keep the lion's share of the zillions they rake in during the time of the marriage, as 'they earned it'.

If you had children from a previous relationship and wanted to protect assets that you want them to inherit, I can see why you would be interested. But there are ways of doing that without a prenup.

I honestly don't see the point. Marriage as far as the state is concerned is a legal contract. Part of the deal is that your assets become assets of the marriage. If you don't want that, don't get married. It's not like there is now widespread social stigma attached to living together while unmarried.

It's all very well to say there would be safeguards, but I'm certain there would be cases where the more economically powerful partner (typically a man) would co-erce a partner into an unfair agreement. Would the courts have any powers to override unfair prenups?

Prenups are an attempt to fetter the law and to undermine the principle that marriage is a contract of partnership. I'm not sure why you should get any of the benefits of marriage if you are not prepared to observe this principle.