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 that if you are prepared to prepare and sign one, then it should of course be a legal document; put your mouth where your money is so to speak!

I think they are a good idea and the notion that they aren't because the poor little woman will be lovestruck, rendering her brainless to understand what she is signing really doesn't stack up. If you want to protect assets that you are bringing into a relationship you should be able to.

I am another one who is getting pretty annoyed that the assumption is that it is the man bringing in all of the assets.

You need to think about your own situation and what is fair & reasonable to have in a pre-nup.

As for those of you saying you shouldn't get married if you want a pre-nup... that's just being naive. Many people are 'once bitten, twice shy' - there is nothing wrong with going into a relationship with your head screwed on the right way and your rose tinted glasses OFF.

I have been "bitten" way more often than once.... I really don't think prenups have anything to do with protecting the vulnerable. If you go into a marriage that mistrustful and protective then I don't think marriage is actually for you, you don't have to get married. There is no reason why, if you want to retain your assets and are "once bitten twice shy", you should want to seek a marriage which is about being tied together financially as one entity. This prenup thing undermines marriage and can be used to exploit vulnerable people. There is no benefit in allowing these kinds of people to get married. There is no getting away from the statistical fact that more wealth is owned by men and more women sacrifice their wealth or their wealth potential in marriages.

There is no getting away from the statistical fact that more wealth is owned by men and more women sacrifice their wealth or their wealth potential in marriages.

Women capable of earning- children and the decision to be a SAHM reduce that potential which is why I think when you marry you clarify that and clarify that when that occurs who is happy to take financial loss/responsibility

At the moment it's obvious that despite it being 2011 there are some women who assume marriage = men bringing money into their situation and prenups threatening that

When you divorce you expect the financial settlement to include disclosure and an agreement for how to pay for children. It's often at this point that couples get really nasty (affecting said children) when they realise the impact this will have on their personal finances. Agree it upfront. That is honest

To just epect one party to 'keep you' but not be prepared to sign to that effect is as bad as expecting one party to give up their house/job/care for your child and not receive some 'compensation'

curiosity I quoted you and then put a face in... the two are linked but it's not aimed at you. I agree with your statement but object to those that think it's inevitable.

It's not. Women make a choice when they give up work. Make that choice together and get agreement on how it is financed

Railway child - ha ha!

I see what you are saying but surely divorce negotiations are about finding what is fair and reasonable and someone who is very upset about that is likely to be in the wrong and also likely to be angry whether or not they have a prenup. Someone who desperately wants to hang onto what they perceive as their wealth more than they want to try to resolve things amicably will always behave badly whatever the circs of the split, in fact I believe legally binding prenups will just legally support this prioritisation of assets over people's needs and worsen the situation and bad feeling when people divorce. How you feel when you divorce is obviously not how you feel when you marry so clearly it is very likely partners may not feel the same about the prenup they signed. It doesn't guarantee good feeling making it legally binding juts means it takes away the ability to make an agreement everyone is more happy with.

Sorry, that is difficult to read... Phone, school etc

And I reiterate - a childless woman is very likely to overestimate her ability to keep her career on the same trajectory post-children. Particularly if the wage she is on pre-children isn't enough to pay for a nanny.

Nursery / most childminders require her to leave work around 5.30 That alone can be hugely limiting to career prospects.

I just don't think you understand how limiting until you have children. So asking someone to say how much financial support they would need in the event of divorce will mean lots of women insisting that no, thanks, they'll be fine, they have a good job and good prospects, only to see those prospects diminish and then in the event of marital breakdown having to cope without support because they thought they didn't need it before they knew what they were talking about

I think it would be iniquitous to enable people to decree what sort of income earning / sahp role they must play in the event of having children! I can't see any justification at all for entering into a partnership and not being required to pool all resources during the course of the partnership (with the possible exception of inheritances which come from one members family).
Plus everyone, men and women, needs to be able to adjust to circumstances as they arise re childcare, redundancy, long-term illness, a child with a disability and all the other unplannable-fors that occur during the cours of family life.

If pre-nups are acknowledged at all iyt should only be with respect to assets brought into the partnership.

I don't see how a partnership can be claimed, and a couple treated legally and financially as a partnerhsip with the various benefits on offer, if they are effeectively operating as independent individuals according to a pre-nup.

They are mandatory here (France) and practical and sensible. All for them (although the concept was hard for me to swallow at first when we had to draw up ours, I readily admit that).

It's not necessarily about divorce, it's also about protecting the assets of the other spouse and children should one spouse go bankrupt or have a business go bust.

There are standardised pre-nups here and any solicitor worth their salt will explain all the pros and cons of each and how the reflect on particular circumstances.

Also a pre-nup should focus the mind on responsibility for the children and not necessarily on one party's financial (in)dependence.

Flying cloud - I feel I would welcome mandatory prenups for lots of the reasons you suggest, I think that actually would be about equality, fairness and responsibility.

Brilliant idea and I hope they come to be recognised in Ireland as well.
I can see no reason why two consenting adults should not have freedom to contract for whatever the hell they like.

I think they're a good idea - they're not only about divorce, but also about death, what happens when the first one of you goes. Well, in France anyway, where wills don't have much standing. Don't know about the UK.