Introduction

Bridesmaids, groomsmen, dresses, suits, flowers, church, reception, cake and rings. Should your wedding checklist include a pre-nuptial agreement? The dilemma facing many couples with pre-nuptial agreements is discussing outcomes should their marriage fail at a time of great optimism and excitement about the future, a time where in the couples’ minds, only death will end the marriage (or “till death do us part”). The purpose of this article is to address various arguments against pre-nuptial agreements and highlight the advantages of signing a “pre-nup” before you decide to walk down the aisle.

Pre-Nuptial Agreements: Defeating the purpose of marriage?

Critics suggest that signing a pre-nuptial agreement reflects a defeatist attitude to marriage and undermines its sanctity by offering an easy escape from marriage. It is true that solicitors are asking two people in love to consider their own divorce before getting married! Signing a pre-nuptial agreement in the solicitor’s office is not a romantic occasion. In fact, discussion about a pre-nuptial agreement may generate a little tension in the relationship.

But let us be realistic about marriages for one moment. At least one third of all marriages end in divorce. Further, disagreement about finances is one of the major causes of divorce. Being frank and open in discussing financial matters before marriage is a positive step in the relationship because it:

• Minimizes the likelihood of finances being the cause of a marriage breakdown; and
• Spouses can learn a great deal about their partner (whether a pre-nuptial agreement is signed or not). The heightened emotions associated with divorce proceedings are unlikely to occur when discussing financial matters before marriage. Partners can learn about and understand each other’s personal, employment and financial goals in marriage in a setting which is not confrontational. For example, a pre-nuptial agreement may include details about the couples’ children. So discussion prior to marriage may centre on when and how many children the couple would like to have.

Whilst the family home is likely to be the largest financial commitment in a person’s life, marriage is the most important financial relationship. Tackling the financial matters in the pre-nuptial agreement can in fact strengthen the marriage. Any secrecy about each partner’s financial circumstances is removed (as the legislation requires full disclosure of financial position) and signing the pre-nuptial agreement itself is an act of trust and good faith.

Marriage is a Contract

Marriage is a contract at law. In reality, everybody has an agreement about financial and other matters on divorce, whether that agreement is reached by the parties themselves or determined after marriage breakdown by the Courts. Why sign a contract before marriage? There are two major reasons:

• Using a lawyer and the courts to resolve marriage matters is a costly process. A binding pre-nuptial agreement is likely to preserve more assets for distribution to family members.
• The couple is likely to think more rationally about financial matters prior to marriage, rather than after marriage breakdown, a period which is characterized by emotions ranging from indifference, to sorrow, anxiety and hatred. A contract signed at a time of greater affection is more likely to produce a result on marriage breakdown which is consistent with the couples’ rational expectations.

A pre-nuptial agreement is like an insurance policy. Most people insure their car, home and contents to protect them in the event that something goes wrong. The pre-nuptial agreement is a policy that you and your partner will hopefully never use, but if it is required, the pre-nuptial agreement minimizes the costs of divorce and provides an outcome which is agreed to by the parties in an amicable environment.

When Should I Complete a Pre-Nuptial Agreement?

The pre-nuptial agreement should be completed well in advance of the wedding ceremony. “Springing” an agreement on your partner is not a good idea because the validity of the agreement is likely to be challenged in the Courts on grounds of unfair conduct. Put simply, allow plenty of time before the wedding for the discussion and preparation of the pre-nuptial agreement.

Conclusion

A pre-nuptial agreement is not a romantic gesture - it is capable of leading to some tension in the relationship. However, consider that similar transactions (or contracts) will take place during marriage (e.g. purchase of property). An inability to negotiate the financial issues which will arise after marriage is a cause of short marriages. Are you ready for marriage if you are uncomfortable with discussing financial issues before marriage?

Love is not necessarily all you need in a marriage. A pre-nuptial agreement should be considered for inclusion on your wedding checklist for it is a practical response to divorce and enables couples to comprehend the reality and romance of marriage.