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.

That's a particular definition of marraige, though, FairPhyllis. You could argue that marraige has historically been primarily about the safeguarding of inheritance and property.

and in various other countries prenups are seen as quite normal, they're already binding I think in several European countries.

I like the idea of individuals being able to set their own contracts, and I'm a bit dubious about the need to protect women from their silly lovelorn little selves by overriding the contracts they make. Even though I know that in reality it's mostly women who get shafted in these situations. So I guess I think prenups should be binding, if made. And that women should be encouraged to think seriously about these issues, in advance and during relationships.

Marriage is indeed a legal contract, however generally under English law you have freedom to contract whatever you want. This would simply enable you to change the terms of the contract if both parties were in agreement. Once you accept that there is nothing sacred about marriage (which I think as a society we have), I can see no reason why we should not allow more flexibility in what the parties enter into.

I think there is no point having a prenup unless it is legally binding.
I earn more than my husband. We didn't do any sort of prenup as the difference isn't that huge, plus Scottish divorce law protects individuals more than English (only assets accumulated during the marriage have to be split). If I had signed one I would want it to be legally binding.

But I'm not sure why anyone would want to get married at all if they felt they had to safeguard themselves from their spouse! What is the point?!?!

The status quo is that your assets are separate before you marry, your children are entitled to their inheritance married or not if you don't want to be forced to share your assets you shouldn't take steps to change the status quo through getting married.

Always having a prenup and separate finances purely because someone hurt you in the past is very sad IMO and I would say is an indicator that you are not fully recovered and still mistrustful.

I don't think that people shouldn't be able to choose to get a prenup but I don't think they should be in any way automatically binding because this just makes the exploitation of vulnerable people much more likely and much much easier.

I don't think your average working woman has the faintest idea just how much of an effect motherhood will have on her career. It would be easy to have women in a situation where they thought they would remain more or less independent and signed a pre-nup as though they would be - and then had to keep to the letter of it in the event of a marriage breaking down, even though it meant the man would be massively better off than the woman.

And I don't think we should be encouraging people to get married in these circs either. In fact I dont think the govt should be encouraging anyone to get married in any circs. Marriage doesn't make a relationship stable it is generally the other way round - stable relationships generally marry. This is a govt of asses.

I think there's a certain irony in that many of those couples entering into pre-nups will go on to get married in a ceremony where they utter the words "till death do us part."

Personally, I have nothing against making pre-nups legally binding - it is better than simply having a relatively meaningless document. However I do find the notion of entering into a pre-nup sad in the extreme. If a couple think it is necessary then they should take a little more time before they tie the knot. Me and my wife were together for 5 years before we got married. The notion of a pre-nup didn't enter our heads and, despite difficulties, neither has the notion of divorce.

Maybe we are fortunate, but that 'fortune' is largely down to the fact that we recognised what a significant step marriage was for us and took our time. We also worked bloody hard at the times when married life was a struggle.

Final thought: what if people's circumstances change during their marriage. The notion of a divorce might suddenly become very attractive to one party but financially impossible for the other. And what would all this lead to? More money for the lawyers.

They should be law I think. My DP and I are getting married in March and we are in the process of putting one together. We both had a house when we got together, which we still have, we both remortgaged them and then we bought a place togther 2 years ago. DP also had 3 buy to lets and a holiday home abroad. Why should I be entitled to any of that should we get divorced ?. Our agreement basically lays out that should we divorce, he gets his house, I get mine, he gets the properties he had before the marriage and our family home is split 50/50. We have just basically protected what we can into the relationship with, anything since then is split. We both work full time so it seems fair to me.

Yes, you do have freedom of contract under English law. But as I understand it marriage is a type of contract which is governed by statute ? because of the way it?s evolved, you don?t have the freedom to invent your own marriage contract. I suppose what makes me instinctively uneasy about the prenup proposal, apart from the objections I had above, is that it seems you are creating an expectation that you can privately ?pick and mix? the rights to which partners are entitled upon marriage. What you end up with is inequality of legal rights within marriage from person to person as well as opportunities for injustice. I find this odd as I see civil marriage as no more than a collection of legal rights. It depends whether you think the principle of everyone getting equal rights upon marriage is important or not.

Now if we as a democracy decide that our definition of marriage has changed, well and good. If we decide that marriage no longer involves financial partnership, fine. But philosophically it seems to me it might be better to address this issue at the level of ?what do we as society consider marriage to consist of?? rather than a bolt-on piece of legislation that allows people to privately rewrite the law.

Bit of a derailment but just interested!

Havetowearheels - but there are no rules about what you would take if you divorced. If you don't want his homes you wouldn't have to take them when you are divorcing so doesn't that make it unnecessary for him to have a prenup stipulating that you can't have them?

In the context of the current law I can understand the value in the prenup because it is showing both of your agreed intentions going into the marriage but under the proposed plans it would mean even if things changed and it would be fairer and necessary for you to share them you might not get any part of them... That I suppose is why I feel the status quo is a superior state and that prenups are better as demonstrative rather than legall binding.

I haven't read others responses.

I had planned on marrying for life. There is bugger all you can do if you make a poor choice in life partner in youth.

I was married to an emotionally abusive man who used divorce proceedings including finances as ways to abuse, civil court cases are not something the police can do anything about. Having experienced this messy divorce, it put me right off remarriage. If prenups were legally binding it would make a second marriage more attractive to me, to know that I would not have to go through all that again if the marriage failed.

There is also the issue for me now, if I remarried that I would feel that I needed to protect my children from first marriage financially from second marriage, so I would want to protect their home etc that came from their father, and not loose any of that in a second divorce. Their father has no contact and has remarried so they would get nothing from him, so I would want to ringfence assetts from my marriage to their father from a second family.

Once bitten, twice shy!

I am all for prenups.

I think Pre-nups are a bad, bad plan.

The whole point of marriage is to create a lasting, binding agreement, and a pre-nup negates that contract.

I tbhink all this tinkering around the edges (pre-nups, creating CP rather than marriage f gay couples etc) shows that really marriage as a legal / financial set-up is not fit for purpose in contemporary society.

This is what I would do:

There would be 'weddings'. These would probably be primarily religious occasions, in church / synagogue / temple, or humanist ceremonies, and would be about whatever religious and / or moral values people wish to endow the ceremony and marriage with. However, they would not be the legal and financial basis of the partnership.

There would then be Family Partnerships. the legal and financial marriage contract. Open to gay / hetero couples and also small families which have joint family responsibiliyt fo a child. So, two lesbians and a bio Dad who wished to live together as a family in one house could have a Family Partnership, just like a mum and a dad. The basis of a family partnership would be:
You can take out what you had before you entered the partnership
Al assets gained during the partnership would be jointly and equally owned and split equally on dissolution, except that
Each child within the partnership is entitled to an equal share of whatever is gained during the partnership, as well as inheritance of whatever it's parent brought in to the partnership.
Peopel could make thier own contract ammendments to suit their own situation - as in pre-nups, but these would be within certian guidlines and based on principles decreed fair by the state and justice system.

Maybe just change the wedding vows then? Exclude the for better and worse bit .

Takes a marriage down to a financial transaction only - so not a good idea IMHO.

I think that people who have divorced and suffered financially because of that relationship (I.e. come out poorer than they went into it) would be all in favour of prenups

Those who have married and got richer might eschew them.

I'd be very happy to have a prenup - in fact it would make me consider marriage again whereas as things stand? No way.

My prenup would state a simple financial breakdown of major assets on entry into marriage
...and an agreement for what would be shared during the marriage and if it broke down
...and each party would confirm what their expectation of future financial responsibility would be (e.g. I expect to be a wage earner/I expect to give up work and DP will be the wage earner for the pair of us/DC until DC are (insert age)
.....the prenup would have regular 5 yrly reviews when a new agreement could be reached.

Romantic? No.

Nor is divorce. How many marriages end in divorce nowadays?

If you agree then it needn't cause a problem. If you cannot agree before marriage you maybe shouldn't be marrying.

I think religious organisations should make their position clear on this e.g. is a pre-nup compatible with the marriage vows that couple are planning to make. I don't know the level of detail that's included in pre-nups but will it detail how much you are expected to earn, whether you always intend to work full time, how many times a week you are expected to have sex or get up for the night feeds etc. Then what happens when something unforseen happens: you have a disabled child, you become terminally ill, your parents need to be cared for, or one of you gets made redundant?

The only good thing about a pre-nup would be that it would help couples concentrate on the commitments in marriage rather than the wedding but this could be done in marriage prep classes without a pre-nup.

Already there is considerable social inequality around marriage and the introduction of per nups will extend this into the middle classes. Today poorer, less educated, disadvantaged people are much less likely to marry and it's not about the cost of the wedding but the fact that many of these 'couples' officially live apart so the state pick ups lots of the costs that their wife / husband would be expected to.

I think the case is slightly different in the case of people who already have children by someone else and need to consider protecting the assets for their children but maybe they would be better not to remarry. In lots of ways people laughed at Paul McCartney for his supposed naivity in marrying Heather Mills without a pre-nup but surely it was the perfect illustration that he entered into his second marriage with good intent.

I can't imagine why anyone would sign a post nup - they would have to be mad!

I am also concerned about the effect on the state financially of the introduction of pre nups, for example will the poorer parter (more likely to be a mother with primary care of children) be allowed to sign away her rights to a home until the children have finished full time education so we taxpayers pick up the bill while her ex swans off into the sunset.

My idea of a prenup would mean both parties agreeing to consider how they will finance children should it happen. So a partner announcing they wouldn't expect to be financing it, would mean the other party signed in agreement that they would bear that responsibility

Too many couples assume that someone else will bear the cost.

Why would it be mad to sign to say this is what I bring into marriage and this is what I expect to give if we have children???? Surely it's just honesty and open communication about fundamental important issues.

To me it's no different to announcing your expectation of other aspects of life except you are signing and committing to it? (because all too often it's these aspects which couples argue over when the common event of divorce occurs)

You might find it cut divorce because monetary disagreement is a common cause?

I would advise anyone who had a lot of pre-relationship assets they were not prepared to split, not to marry, never mind a pre-nup.

If I ever married again (unlikely, but still...) I would need some kind of pre-nup agreement.

Most of the assets I have were built up with or by my late husband. We had wills which left everything to each other, rather than the children, and because of the punitive tax rates on trusts, I have kept all the assets in my name rather than putting anything in trust for the children, but I still see it as much their money as mine - they lost their father far too young and should benefit from what he left behind.

If I thought a future second husband could demand half of that in a divorce, it would definitely deter me from marrying again.

But although I think it should be possible to have legally-binding pre-nup contracts to protect existing assets and children of previous relationships, there should also be some way of challenging them, eg if they prove to be unfair to children of the second marriage.

prenups are a good idea. If you are mature enough to marry, with all of it's legal implications, then you are mature enough to enter into a prenup. Provided both parties had good legal advice, I can't see any argument against it.

Curiositykilledhaskittens just because I say I wouldn't take a share of his houses wouldn't mean that I wouldn't change my mind should we divorce. He is protecting his assests inccured before our relationships, the holiday home was bought through inheritance money from a grandparent. I have a house bought from the proceeds of a previous marriage, where I was shafted by ex partner.
I had house before previous marriage, ex had issues with bad debt. I basically supported him while he paid of debt, he then took 35k from me from the sale of the house, for which he put in monthing.
The house I curently own in my sole name has a very small mortgage and should 2nd marriage breakdown I could comfortably live there with DD. I would also get half the home we currently live in which DP contributes far more than I do as he earns double what I do.
I suppose what I am saying is should we seperate I would be more than comfortable without shafting him. We have also made seperate provison for maintenance for DD.

Dogfish, I surprised the women aren't queuing up. So a prospective DW is free to give up her home, pool all her income with you but the house remains yours...I think she would be better advised to just date you - if you have some redeeming features!