Pre-Nuptial Agreements: just for celebrities?

Pre-Nuptial Agreements – are they worth the paper they’re written on, or just for celebrities?
Cheryl Cole’s sudden and unexpected marriage to her little known partner of three months, Jean-Bernard Fernandez-Versini, has resulted in a speculative media circus wondering: will it last?  Have they married as a result of Cheryl falling pregnant? But most importantly for the pessimists amongst us… did she sign a Pre-Nup?

According to the red-top press, the answer appears to be no, she hasn’t.   The opinions that flow from this revelation, if it is found to be true, fall into two schools of thought: the romantic idealists who do not believe they are morally right; and the practical realists who consider themselves financially savvy.

According to reports at the time of her first marriage, to footballer Ashley Cole, Cheryl was reported to have said that Pre-Nups “defeated the point of marriage” and that she found the concept “disgusting.”  If we are to believe what we read, it doesn’t appear that her views have changed the second time around.

In the world of celebrity, Cheryl’s decision not to enter into a Pre-Nuptial Agreement is rather unusual; the Kardashian – West wedding was reportedly postponed whilst the finer details of their Pre-Nuptial Agreement were ironed out.  Other famous Pre-Nups involve Catherine Zeta-Jones and Michael Douglas providing Catherine with $5m if her husband-to-be cheated on her, Tom Cruise and Katie Holmes which generously paid out $3m to Katie for each year they remained married and the slightly more unconventional Agreement that exists between Nicole Kidman and Keith Urban which gives the latter nothing if he is found to have fallen back into his drug-taking ways.

So, is Cheryl right to put love first or should couples who have an unequal distribution of wealth consider entering into a Pre-Nup?  The fact is that such Agreements are becoming more and more common and they should not be viewed as documents which favour one party as in the majority of circumstances, they provide financially for both parties in the event of separation so they should not necessarily be seen as protecting one whilst fleecing the other.

So are they for normal people too?

Often my clients come to me and almost apologise for wanting a Pre-Nuptial Agreement and seek reassurance that what they are doing is normal and more importantly, reasonable.  The answer I quite honestly give is yes they are normal; such agreements are becoming more and more routine for family lawyers in London.

A large number of my clients who enquire about Pre-Nups are people who have been married before or have children from a previous relationship who they wish to protect financially.  Other clients are marrying later in life and have already accumulated a large amount of wealth which they are unlikely to add to significantly, so wish to protect what they have built up; I have recently started to see an increase in younger couples enquiring about Pre-Nuptial Agreements who may have inherited wealth or been very successful early in their careers, a result of which has left a financial cavern between them and their spouse-to-be.  Pre-Nuptial Agreements aren’t just for celebrities, they are for any couple who wish to make sure that, should the worst happen, they have a ‘just-in-case’ protection for their futures (not too dissimilar to taking out a life-insurance policy really!)

How do you make sure your Pre-Nuptial Agreement has the best possible chance of being upheld?

In England, the law relating to Pre-Nups underwent a radical overhaul following the landmark decision in the case of Radmacher v Grantino in 2012.  Guidance from that case states that unless the terms of the Agreement render one party in a position of financial hardship, it should be upheld.  With that said, the power of the Court cannot be excluded and any Agreement is capable of being scrutinised by the Court particularly in the event of children being born.

It is essential that the document is correctly drafted by a specialist family solicitor in London and that both you and your future spouse have taken (or had a reasonable opportunity to take) independent legal advice.  You should also ensure that you each provide full and frank disclosure as to your financial positions, any defect in your disclosure could leave an opening for your spouse to try and unpick the terms of the Agreement and if you do intend to have children, ask your family solicitor to include a clause providing financially for them too.