Prenuptial Agreements: A Family Affair?

Prenuptial Agreements: A Family Affair?

Parents of marrying couples are increasingly asking about prenups

My opinions on prenuptial agreements are well known. I don’t like them, do not believe that they are “socially necessary” and do not believe that they should be automatically legally binding. I would not have signed one myself — nor married anyone who asked me to as a precondition of marriage.

However, parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups. Many of these parents are wealthy, some are super-wealthy and others are not wealthy at all. What they share are concerns about what will happen if their children’s marriages break down. They don’t want any of their hard-earned cash to pass to the divorcing spouses, and they are determined to protect their money.

It’s understandable. But is it reasonable — or advisable — to expect a future son or daughter-in-law to enter into a prenuptial agreement? I’m not so sure. What is often overlooked is the effect of a prenuptial agreement on the marriage itself.

I believe that in many cases, the existence of such an agreement can actually bring about a divorce.

Consider the vulnerability of any newly married couple, working to make their marriage a success. Suppose they are showered with wealth by one side of the family. Then consider the effects of the imbalance that results if a prenuptial agreement is added to this equation. One party has the money; the other party is shackled to a piece of paper that — in theory — leaves him or her unable ask the court to use its discretion and consider needs and entitlements in the normal way. They are married, but they do not have an equal footing within their marriage. Their attempt to forge a life together can only be hampered by such pressures.

If family members feel the need to protect their money, they should ring-fence it so that no outright gifts are made until they are satisfied that the marriage will work. Here at Stowe Family Law we often advise parents on suitable trust structures and acquisitions of assets, loans and mortgages, in order to protect family money or assets. It isn’t ideal and isn’t necessarily tax effective either, but it’s a practical option. It means that unwelcome and unpleasant pressure is not placed upon a young couple about to begin their life together, and it means that the balance of power between them is not disturbed.

In my work, I have all too often witnessed the catastrophic effects that wealth can wreak.

Common sentiments include, “You only have this house because my family bought it”, and “All you care about is your family and their money”. I have come to believe that a great deal of money placed into young, inexperienced hands - particularly if it is tangled up in legal “gobbledegook” — is a recipe for disaster.

My advice to parents who intend to give large sums to their children on marriage is this: protect your money, but don’t subject your loved ones to unnecessary pressures and constraints. In the worst case scenario, you could end up exposing your child to the very divorce from which you are trying to protect them.

Nicknamed "The Barracuda" for her tenacity, Marilyn Stowe is one of the UK’s most sought after divorce lawyers, and is the senior partner at Stowe Family Law.