Last week in a ground breaking case in the Court of Appeal three Judges decided that a pre-nuptial contract entered into by a wealthy heiress before the marriage in Germany should be recognised as binding in divorce proceedings in England. In future the Courts will give due weight to such pre-nuptial agreements if they are freely entered into by the parties.
The implications of this case are immense. Many women who have been presented with a pre-nuptial contract to sign imminently before a wedding, have felt before this case, somewhat confident that even if they signed them, that they would only be seen as one factor to be taken into account and generally not binding. To take such a view now would be dangerously naive and somewhat fatal in terms of a future financial settlement.
Pre-nups are now in a different category because at last the Judges have recognised that there has been a vast social revolution in relationships and divorce that must be reflected in the law. They accepted the invitation by the flamboyant and burning light of the legal Bar, Richard Todd QC to make that change and recognise pre-nups and their importance. They shifted away from the view that pre-nups are against public policy.
My view is that pre-nups do have an important place in a world of change and are vital to encourage more men to walk up the aisle and to dispel their fear of potential divorce settlements. This worry by men has caused marriage rates to drop dramatically in recent years.
The irony is, that many women have become prejudiced by the huge divorce settlements as men who fear marriage will only cohabit. What most women do not understand until they relationship breaks down that as a cohabitee they have very little rights at all except through the children. Therefore marriage is the greatest protection in terms of financial settlement and the pre-nup is a way that future relationship breakdown can be controlled.
Pre-nups can be very flexible right across the social spectrum and useful in the right context. So for a man or woman or wishes to protect their assets received from a previous divorce, or on behalf of their children, they can achieve this.
If parties come from a wealthy dynastic background such as Ms Radmacher in the case in point, they can protect their money from what they suspect are gold diggers or opportunists so that they can feel that they are entering into a relationship based on love and trust rather than worry about monetary gain.
In many cases it can take the sting out of conflict if all parties know where they stand and expensive and acrimonious divorces can be avoided.
Where I have a problem, is if the pre-nup is termed that one party will take all and the other has little or nothing that there may be immense unfairness in a first time round marriage. The Court of Appeal made it clear that if children have not been properly considered in a pre-nup that they will make provision for them anyway.
What we will never see in this country is the introduction of bizarre pre-nups such as those in the US. Infidelity clauses where a penalty is paid for straying such as that rumoured to have been entered into by Catherine Zeta Jones and Michael Douglas will not be recognised. Neither will the terms of the somewhat bizarre pre-nup reported to have been drawn up between J-Lo and Ben Afflick, to pay a penalty if he had any form of affair.
It was little wonder that the marriage never took place. Other pre-nups in the US that claimed that monies would only be paid in a divorce settlement if the wife did not put on weight, known as the Weightwatchers clause would be totally ruled out of Court here. Or in another where the pre-nup insisted that the ex mother-in-law should come to live with the wife on divorce would also be rejected.
Pre-nups will commonly deal with either party keeping what they brought into the marriage but dividing matrimonial assets equally. Alternatively there can be an increased sliding scale for each year of marriage. Catherine Zeta Jones was said to expect ?1m for each year of marriage in the event of divorce.
Some dog leg up after 5 or 10 years giving a set lump sum. Pre-nups can give a lump sum after any period of time and write in provision for the children or in some cases family pets. Pre-nups can deal with how houses and assets are divided but the buzz word to avoid is duress for the pre-nup to stand.
Duress will vary in each case but if there has been no opportunity to take advice or disclosure of assets or one is asked to sign at the last moment imminently before the ceremony without having time to consider the position, that will amount to duress and invalidate the pre-nup.
Pre-nups are not romantic to the fairytale seeking wife or husband but in time will become enshrined as part of English law and perhaps at that time will not appear so distasteful as they do to so many right now.