(Closed) Would you ever sign a prenup?

posted 6 years ago in Logistics
  • poll: Is there any possible circumstance in which you'd ever consider signing a prenup?
    No : (78 votes)
    29 %
    Yes : (174 votes)
    64 %
    Yes, and it would be a deal breaker if my SO didn't feel the same. : (20 votes)
    7 %
  • Post # 62
    Member
    7977 posts
    Bumble Beekeeper
    • Wedding: July 2013 - UK

    @AmyJCardiff:  My answer is long… but if you want sources then I am happy to provide them. Let’s start with a wikipaedia overview:

    “Prenuptial agreements have historically not been considered legally valid in the United Kingdom. This is still generally the case, although a 2010 Supreme court test case between the German heiress Katrin Radmacher and Nicolas Granatino,[2] indicated that such agreements can “in the right case” have decisive weight in a divorce settlement.[3] The Law Commission is due to consider whether a change should be made to the letter of the law, recognizing prenupts in a more general way; they will report on the matter in 2012.”

    http://en.wikipedia.org/wiki/Prenuptial_agreement

    Two questions: 1. What was the law commission’s answer in 2012?

    Answer: “Such agreements are not currently enforceable (in contrast to the position in many other jurisdictions). The court may, however, have regard to them in determining what financial orders to make.”

    http://lawcommission.justice.gov.uk/areas/marital-property-agreements.htm

    2. Why was the case of Radmacher and Granatino upheld, and so unique?

    Firstly, neither of them were UK citizens, and the assets in question were not held in the UK. Secondly, they had already reached an agreement prior to this, which Granatino had already signed. This was part of a longer process of appeal. This makes the case exceptional. Thirdly, inherited wealth held in European countries is not counted as part of the marital assets… with or without a prenup. I refer you to this site:

    http://www.bsdivorcesolicitors.co.uk/capital.php

    Now, let’s go back to your statement: “the courts will uphold the pre-nup. In effect, they are now binding unless they are unfair”.

    The key to that statement is “unless they are unfair”. What is also missing is the statement “or contradict existing guidelines”. Now, let’s look at the case of Bob and Doreen again. Previous behaviour such as infidelity or violence cannot be used when determining the distribution of marial assets. Again, I refer you here:

    http://www.bsdivorcesolicitors.co.uk/capital.php

    “In rare cases behaviour can be considered as a factor in determining the division of assets. However, the behaviour must be severe, for example, in Jones v Jones (1976) the husband attacked and disabled his wife, thereby limiting her earning capacity, and it was considered unfair not to award her more of the available capital as a result.”

    Unless your long term earning capacity is diminished, behaviour gets you nothing. So it doesn’t matter that Doreen was shagging the milkman, or that Bob gave her a black eye. Those cannot be binding clauses in a prenup because they contradict existing legislation and are therefore “unfair”. Likewise, Doreen cannot sign away her rights to Bob’s pension. Now, the clause about the clock is fair, provided that Doreen was aware of it’s value prior to the marriage… that can be used as evidence to show that she previously agreed about the clock. But Bob would probably have got the clock anyway.

    If you want to hear it from a lawyer, these guys summarise the situation better than I could… Terry and Co. Solicitors. http://www.terry.co.uk/pre-nuptial.html

    “Prenuptial agreements have not traditionally been enforced in divorce law in England. A divorce lawyer is often asked about the possibility of making a prenuptial agreement before entering into a marriage. ….Unfortunately, the answer in almost all cases is that the jurisdiction of the divorce courts cannot be ousted in this way and that a pre-nuptial agreement is hardly worth the paper it is written on.

    In order to understand why this is so one has to realise that the tradition of the English divorce courts is to look at all the assets of the marriage at the time of the divorce and to distribute them – “his”, “hers” and “theirs” – in whatever way they see fit and accordance with the perceived needs of the parties and of any children. This is done in accordance with certain principles laid down by statute and case law but nevertheless this is the basic outlook of English divorce law when it comes to regulating financial matters between the parties. Indeed, it is an attitude which is shared by Parliament and this paternalistic approach is very different from the more “free market” approach which prevails in the US and which allows the parties to a marriage more freedom to regulate their own financial affairs in the event of divorce.

    All the same, there are some good reasons for the English approach and it is not entirely irrational. For a start, it is not obvious how far a prenuptial agreement ought to be allowed to prevail before it is superseded by later events. For instance, an agreement which might seem very sensible in, say, the first year of a marriage might become increasingly irrelevant after the birth of children, a 30 year marriage, illness, bankruptcy or redundancy to name but a few of the factors which could affect any marriage at any time.

    The truth of the matter is that it is extremely difficult if not impossible to foresee all eventualities and later events have a habit of quickly making previous agreements seem very irrelevant. Say, for instance, a man comes to a marriage with a sizeable fortune and his wife nothing. The man might wish an agreement to the effect that his wife should have no claim on his pre-existing wealth in the event of divorce. Indeed, this is one of the main reasons for wishing to make a pre-nuptial agreement. The wife might willingly agree to this because she might consider it fair and content to lay claim only to a share of those assets which were built up during the course of the marriage.

    If this marriage were to break down after just over a year then the agreement may seem reasonable enough. But should it still be upheld if the marriage had lasted, say, five years and there were children? In the event that there was a divorce in the latter event the needs of the children would be paramount and they would need accommodation. Under such circumstances the English courts would almost certainly traditionally have said that the husband should part with some of his pre-existing wealth to provide such accommodation if the assets built up during the marriage did not suffice. They would in such circumstances regard the needs of the children and of the ex-wife as of more importance than upholding the validity of a pre-nuptial agreement.

    In this respect the English courts have not traditionally allowed their discretion to be fettered by pre nuptial agreements entered into by the parties. They would not hesitate to ignore such agreements if they thought it right to do so.”

    The only reason lawyers are twisting things and suggesting they might be valid is because they want to make money out of you… but you can only enter into an agreement which does not contradict existing case law! In effect, the outcome will be identical, or practically identical, regardless.

    Post # 63
    Member
    7371 posts
    Busy Beekeeper

    Sure would. I really dont understand the negative emotions wrapped up in them. To me its no diffrent than other contracts that we use like health, long-term care, car and life insurance.

    If you dont ever get divorced, it doesn’t come into play.

    Post # 64
    Member
    9044 posts
    Buzzing Beekeeper

    We have a prenup. It was a condition set by me in order to progress to marriage. Sorry but the ancestral land that has been in my family for hundreds of years belongs to me and my bloodline and not to my husband. No one ever thinks they are going to get divorced or they think they wont be spiteful but divorce can change people. Why take the chance that it might happen to you? 

    You don’t take out car insurance because you think you will one day crash, you take it out just in case you do. A prenup is the exact same thing. 

    Post # 65
    Member
    1846 posts
    Buzzing bee
    • Wedding: June 2013

    My husband and I lived together and shared finances before the wedding.

    I bought a house before we started dating (he eventually moved in). We ended up selling that house several years laying and using the equity as a down payment on a house that was solely in my husbands name (my credit was going through some issues). So basically at that point I gave up any assets I had and put them in my husbands name, before we were even married. 

    My point was, for us, a prenup wouldn’t have made sense. 

    Had he asked for one, I probably would have signed it, and vice versa I’m sure. But we were a family for 7+ years before we got married, so it didn’t make sense.

    Post # 66
    Member
    1252 posts
    Bumble bee
    • Wedding: June 2012

    Yes, I would. Especially if there is family money involved. Or inheritance. My mom actually ended up being screwed over by her ex husband who wants to split money evenly with her. She is set to inherit a big chunk of money someday and her ex husband wants to split it evenly because he thinks he has a right to it. The divorce proceedings have lasted 3 years now because he keeps appealing. 

    Post # 67
    Member
    1814 posts
    Buzzing bee
    • Wedding: May 2013 - Pavilion overlooking golf course scenery, reception at banquet hall

    We were planning to get one, because I have a large inheritance and he will be inheriting a successful business In a few years, but we just ran out of time to get it done.

    I hate the idea that getting a prenup “is like planning for divorce” – no, that’s like saying getting car insurance is only for those who plan to crash their car, or get crashed into! I grew up in a home with two loving, devoted parents who were together for 20 years before divorcing. I don’t know about you, but I can’t even fathom 20 years worth of time, at only being 25 years since I started existing. Relationships change, people change, and if both parties don’t go the same way, well, there’s not much you can do about it. A prenup helps keep the legal fees down during the emotionally jarring period of a divorce.

    Post # 69
    Member
    2393 posts
    Buzzing bee

    I came into the marriage with no financial assets. Darling Husband has substantial assets. So yes, if he had asked me, I would have signed it.

    But it would have bothered me — so I’m glad he didn’t ask.

    I think it is one more example of how compatible and like-minded we are. There is a very high level of trust between us.

    God forbid we ever split up or divorced, I would walk out the door with my belongings and that’s all. I could never dream of trying to lay claim to the money he worked so hard to earn for years and years prior to meeting me.  

    Post # 70
    Member
    7977 posts
    Bumble Beekeeper
    • Wedding: July 2013 - UK

    @AmyJCardiff:  Actually… sorry for the thread jack, but I’ve thought of a much simpler way to express what I mean! Hooray!

    In English law, anyone can make a contract with anyone else about anything in the presence of two adult witnesses. It doesn’t need to be notarised or formalised by a lawyer to be legal. So… if Bob makes a signed contract with his employee Sue, in the presence of witnesses, that Bob will give Sue a raise if Sue has sex with him, is that OK?

    Answer: Bob and Sue can make that contract, but it is not enforceable, because it is an immoral contract.

    I’ve been trying to find UK websites which lay out the concept of unenforceable contracts, but I can only find American ones. I’ve compared these sites below to the examples in DH’s policing textbooks, and they are broadly similar, however:

    http://smallbusiness.findlaw.com/business-contracts-forms/will-your-contract-be-enforced-under-the-law.html

    http://www.nolo.com/legal-encyclopedia/unenforceable-contracts-tips-33079.html

    OK, so you can make a prenup, sure. And it counts as a contract. But the clauses are only enforceable if they are not…

    1. Unconscionable.

    This means that a term in the contract or something inherent in or about the agreement was so unfair that the contract cannot be allowed to stand. The idea here again is to ensure fairness, so a court will consider:

    • whether one side has grossly unequal bargaining power

    • whether one side had difficulty understanding the terms of the agreement

    • whether the terms themselves were unfair

    2. Against public policy

    Contracts can be found unenforceable on grounds of public policy not only to protect one of the parties involved, but also because what the contract represents could pose harm to society as a whole. Examples of contracts (or contracts clauses) that are against public policy and therefore unenforceable include:

    • an employer forcing an employee to sign a contract that forbids workers from joining a union

    • an employer forcing an employee to sign a contract forbidding medical leave

    Now, let’s get back to Bob and Doreen, and their contract! Bob’s infidelity clause and Doreen’s violence clause are unenforceable on the grounds that they contradict public policy on divorce settlements (see the example in my previous post about violence in marriage). Doreen’s clause about Bob’s pension is unenforceable on the grounds that it is unfair… she cannot waive her right to her share of the pension.

    So… what about the clock?

    If the clock has no material value, Bob will get it. But let’s say that the clock is worth £50,000. If Doreen was unaware of the value of the clock when she signed the prenup, the clause about the clock is also invalid because of misrepresentation:

    “If fraud or misrepresentation occurred during the negotiation process, any resulting contract will probably be held unenforceable. The idea here is to encourage honest, good faith bargaining and transactions. Misrepresentations commonly occur when a party says something false (telling a potential buyer that a house is termite-free when it is not) or, in some other way, conceals or misrepresents a state of affairs (concealing evidence of structural damage in a house’s foundation with paint or a particular placement of furniture).”

    Even if she was aware of the value of the clock, this does not mean that the clock is not included in the valuation of the marital assets. If the court holds that Bob and Doreen must split their assets 50/50, then Bob will keep his clock, but he must give Doreen something from the marital estate of equal value, because the clause does not allow Bob and Doreen to contradict public policy.

    In short, then… prenups don’t do very much at all. You could argue that they speed up the mediation process, but they are only valid as long as nobody challenges them. As soon as they are challenged, they will usually no longer be valid, if they contradict contract law.

     

    Post # 71
    Member
    5063 posts
    Bee Keeper
    • Wedding: April 2014

    @SnoopDog:  I am not materially rich & have no assets to protect so therefore I don’t see any need for a prenup. We share everything we have now already that won’t change. We won’t divorce either. That I am sure of. 

    Post # 72
    Member
    7977 posts
    Bumble Beekeeper
    • Wedding: July 2013 - UK

    @SnoopDog:  @Soon2BD-CBee:  See my previous posts as to why there would be no point to an Englishwoman signing a prenup anyway! Tongue Out

    Post # 73
    Member
    81 posts
    Worker bee
    • Wedding: December 2000

    We were a bit different. I had Darling Husband sign one.  Without going into a lot of gory details, Darling Husband owns my heart, and is welcome to everything in my life. The IRS is not.

    Post # 74
    Member
    1883 posts
    Buzzing bee
    • Wedding: September 2014

    Having a prenup is no more planning for a divorce than buying fire and flood insurance is planning for your house to be destroyed. 

    The topic ‘Would you ever sign a prenup?’ is closed to new replies.

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