Do one in 5 couples married in England and Wales since 2000 really have one?
Yes, according to the conclusion of a survey carried out for the Marriage Foundation which asked more than 2,000 adults who were married or had been previously, whether they had a prenup in place, or knew someone who had one. Far from being extremely rare and the preserve of the mega-rich, the responses suggested that pre-nups are (perhaps) surprisingly common, with 20% of those married since the year 2000 answering ‘yes’, compared to 1.5 % in the 1970s and 8% in the 1990s.
Whilst prenups are part and parcel of my working day, there is still some awkwardness around the subject with some clients being unsure about how or when to raise the issue and others worrying how they will be viewed by their partner if they ask for one. Yet the survey found that ‘despite their pragmatic and unromantic nature, prenups do not appear to be akin to organising the divorce in advance. If anything the direction of travel is that they may even be slightly protective of marriage.’
This is what I discussed with Mariella Frostrup in my podcast Modern relationships podcast 3: How to talk about money– it’s all about legal protection to deal with the potential fall-out if things go wrong in the future and to understand finances from the outset of a marriage so all is clear.
Many of my international clients have no qualms about prenups and postnups, benefitting as many of them do, from civil marital property regimes which a couple opt into or out of as a matter of course upon marriage as just another element of the wedding admin. For them, if living in England, or moving around the globe, clarity about the portability of their pre-nup or post-nup and its efficacy elsewhere, is vitally important.
So how can domestic and international couples achieve the maximum protection from a prenup intended to apply in England (and Wales) and elsewhere. For starters, the case of Radmacher (formerly Granatino) v Granatino  UKSC 42 confirms that so long as the necessary formalities have been complied with, marital agreements are to be upheld in England unless good reason to the contrary can be shown. So much so that in Versteegh v Versteegh  EWCA Civ 150 (in which my firm acted) the Court of Appeal held that a wife could not escape the provisions of such an agreement simply because she had not received independent legal advice when it was signed. More recently the Court of Appeal in Brack v Brack  EWCA Civ 2862, confirmed that where there was a valid agreement, the terms of which amounted to one party having contracted out of a division of the assets based on sharing, the court would be likely to regard fairness as demanding that that party received a settlement that was limited to that which would meet his/her needs.
Important to bear in mind then, that what is considered to be ‘fair’ by the courts here, may not tally with the concept of fairness in other jurisdictions. Given that the English court has an overriding power to disregard the terms of any pre or post-nup, joined-up thinking is required and safeguards need to be put in place to shore such agreements up for the future. Consideration of applicable law and jurisdiction clauses are always high on the agenda.
Under English law, once jurisdiction is established, English law applies, but some foreign courts are capable of applying foreign law and there are also ways international clients may be able to choose a law that should apply if they get divorced in some countries in Europe.
Jurisdiction clauses in prenups (choice of court agreements) also need careful consideration because of the impact of various international instruments like: the EU Maintenance Regulation (EC) No 4/2009; the Matrimonial Property Regimes Regulation (EU) 2016/1103; the EU Registered Partnerships Regulation and the 2007 Hague Protocol which may need to be considered depending on the nationalities, residence and domicile of the future spouses.
The Marriage Foundation survey was a reminder that prenups are becoming increasingly popular and are more prevalent in England and Wales than ever before. They can be a highly effective and important document both here and abroad not just on divorce but as part of discussions the financing of married life. That can only be a good thing.