Prenuptial agreements and couples’ unusual terms

Discussing the desire to enter a prenuptial agreement with your partner can be a difficult and sensitive issue to address. Entering into a formal agreement with someone you are going to marry or enter a civil partnership with has often been viewed as unromantic and stigmatised to ‘doom your marriage before it’s even started.’ However, prenuptial agreements have several benefits and have become increasingly popular in the UK due to rising divorce rates. Despite the preconception that prenuptial agreements are only for the wealthy, it should not be assumed that they are reserved for wealthy couples. Prenuptial agreements are an effective way for any couple to establish certainty around what will happen to their assets in the event of a divorce or dissolution. Later on in this piece we also explore some of the more unusual terms that couples may incorporate.

What is a Prenuptial agreement?

The purpose of a prenuptial agreement is to determine what will happen to the parties’ respective assets following a breakdown of a marriage or dissolution of a civil partnership. When writing up a prenuptial agreement, it is preferable for both parties to take independent legal advice to ensure that their respective interests and individual needs are considered fairly and through the eyes of the court. The cost of writing a prenuptial agreement can vary, depending on your solicitor’s expertise and the complexity of negotiations between the parties.

The common terms of a prenuptial agreement include:

• Property
• Investments and savings
• Inheritance
• Pensions
• Business interests
• Spousal maintenance
• Protection from other party’s debt
• Children’s inheritance or specific assets
• Assets that have been passed down through the family

Are prenuptial agreements legally binding?

Prenuptial agreements are not currently legally binding in the UK. The court has a wide jurisdiction when considering financial arrangements post-divorce. This means that it is the courts, and not an agreement between the parties, that will determine the any financial outcome, although any agreement will be a circumstance of the case and will therefore be considered. The case of Granatino v Radmacher [2010] UKSC 42, which created a new status for prenuptial agreements, determined that they are to be given significant weight in financial proceedings if they have been freely entered into, if all parties have full appreciation of the implications and if the judge concludes that the agreement upholds fairness.

What are the benefits of a prenuptial agreement?

The main benefit of a prenuptial agreement is that they can help reduce the amount of stress and uncertainty that could arise if financial disclosure and division of assets takes place after a non-amicable separation. Also, a non-amicable divorce or dissolution with lengthy negotiations and possible court proceedings is costly, therefore; the cost of a prenuptial agreement is generally a more cost-effective way to divide assets. Further benefits include certainty around protection of non-matrimonial assets, clarity if there is significant disparity between the wealth of you and your partner and for a general peace of mind going into your marriage or civil partnership.

Unusual terms of a prenuptial agreement

Despite prenuptial agreements most commonly being drafted to include provisions of how assets will be divided upon divorce or dissolution, legal advisors are very often approached with more unusual concerns that couples have when preparing for marriage.

Some couples wish to include clauses into their agreement that target more behavioural and social factors. Some of the unusual terms that couples request are:

• In the case of one party being unfaithful during the marriage or civil partnership, the unfaithful party must pay the other party a fine (this is known as the ‘infidelity clause’ and is the most popular lifestyle clause to be added).
• If the husband watches more than 1 football game per week they must pay their partner a fine.
• Whether the child will be reared as a vegetarian and what school they should attend
• Stipulation of how long the other party must work before they can retire.
• If one party does not spend the required amount of time with their mother-in-law or father-in- law whilst married, they must pay the other party a fine.
• Stipulation that there is a right to conduct random drug testing on your partner.
• Stipulation of how household chores will be split during marriage.
• Following divorce neither party can have another relationship for a certain period of time.
• Stipulation around which spouse ‘gets’ which domestic service worker such as the babysitter, the cleaner, the gardener etc.

Although the desire to add lifestyle provisions into a prenuptial agreement has become increasingly popular for couples, the law stipulates that they are rarely enforceable in court. With judges having overriding discretion, incorporating a lifestyle clause into your prenuptial agreement leaves possibility that the whole agreement may be void and unenforceable. This is because many judges deem lifestyle clauses in prenuptial agreements to be frivolous. The purpose of a prenuptial agreement is to determine the division of the financial aspects of the relationship; therefore, any lifestyle clauses or unusual terms should be entered into an alternative agreement in which the court do not have authority to interfere.

Are you thinking of putting a prenuptial agreement in place?

Our specialist family lawyers in Brighton and Horsham can help you negotiate and put a prenuptial agreement in place in a sensitive way, which reflects your individual needs. Please get in touch to arrange a consultation.