Last updated on February 14th, 2017 at 01:57 pm

 Prenups minimise stress and uncertainty

When couples exchange their wedding vows, they surely hope their marriage will last forever. But with 42% of marriages ending in divorce, it’s sensible for couples to embrace pre-nuptial discussions so that, if there must be a parting of ways, they can minimise the stress and uncertainty of divorce by making clear provision now for their future.

Some consider this unromantic or feel superstitious about broaching the possibility of divorce, but couples who feel able to openly discuss these trickier issues now are maybe less likely to run into marital disharmony further down the line. The provisions are also more likely to be fair if agreed at a time when the relationship is strong.

Will a prenup be upheld?

There remains a misconception that it’s not worth getting a prenup for fear it won’t be upheld, when the reality is very much the opposite. It should be upheld provided it’s drawn up properly. For that, you need a good, experienced solicitor.

Whilst pre-nups are not yet legally binding by legislation, the Law Commission published a report in February 2014 which recommends they should be, provided the agreement is freely and willingly entered into without undue influence or misrepresentation, the pre-nup is signed at least 28 days before the wedding, there must be an exchange of financial disclosure and both parties must have received legal advice.

What does the law say?

Whilst reform is likely, we don’t know when new legislation will be passed. But our law develops by cases as well as statutes. In the important case of Granatino –v- Radmacher (2010), the Supreme Court decided to enforce their pre-nup, which meant the husband’s settlement plummeted from £5m to £1m, and this case stands as solid law today.

It’s a lot cheaper to get a prenup than to risk arguing about your entitlements later in the divorce court. Although as Baroness Hale of Richmond said in the Radmacher case (dissenting), the object of a pre-nup is to deny the economically weaker spouse the provision to which she – or he – would otherwise be entitled. Pre-nups are essentially about preserving wealth belonging to an individual and having clarity of arrangements.

What if you’re already married, or not getting married?

If you’re too late for a prenup, you can still get a postnup, or if you’re not yet contemplating marriage at all, you can enter into a ‘cohabitation agreement’. The main message to convey here is to protect yourself financially as best you can – just in case of relationship breakdown in the future.

For advice on prenups, postnups or cohabitation agreements, contact a member of our Legal 500 recommended  family law department.

Read more about prenups on our website by clicking here.

Nicola Cancellara.  Family law solicitor.