Pre-Nuptial Agreements: Part 1 – to have or not to have?

Nigel Winter

Nigel Winter


This is the first of a three-part series all about Pre-Nuptial Agreements.

Should I get a Pre-Nuptial Agreement? Undoubtedly, the answer to that question is indeed to have one.

These are straightforward documents but, contrary to popular belief, are never merely a case of presenting your fiancé with a document and expecting them to sign it.

The first issue to consider is perhaps the cost. 

What’s being drawn up is a document that may never be used, but if it is used, it will be at an uncertain point in the future when circumstances are currently unforeseeable, but nonetheless based upon the circumstances of today. Who can say what circumstances will prevail in 5, 10, 20 or even 30 years’ time? 

Usually, it’s seen as a simple requirement of most clients to ensure that each party keeps what they bring into the marriage. What could be fairer than that?

And by in large, the above is relatively easy to draft. But your lawyer (acting as your professional adviser rather than a “salesman”) has a duty to advise you of the shortcomings of this simple proposal. For example, consider the following:
  • Two people with their own wealth and their own children – no further children planned. Neither wishes to make a claim on the other, but simply live together into their old age.
  • They enter into a briefly drafted (and comparatively cheap) Pre-Nuptial Agreement which is duly filed away and not given much further thought.
  • One party becomes critically ill and the other makes considerable sacrifices to look after them for 20 years, and in so doing, using their own wealth and savings, giving up a lucrative career etc.
  • When the critically ill party pass away, the remaining spouse, who has cared for their partner for two decades, finds they have neither a house nor a home. And then their adult children miraculously reappear (after having left the spouse to care for their parent for two decades) and claim what they see as “their share”.

With the above in mind, it's not surprising that there are complex clauses to accommodate such eventualities. However, they are not necessarily cheap. They will need to be drafted by the solicitor and approved by their client, the other party, and critically, the other parties’ solicitor.

They will also endeavour to envisage a whole host of unforeseen ramifications that flow from those unfortunate but largely realistic possibilities. 

When first seeing a lawyer and expecting to have a Pre-Nuptial Agreement drafted for say £1,000, when the foregoing possibility is pointed out, the cost dramatically increases. This in turn leads to an understandable degree of disappointment.

Ultimately, do you want your Solicitor to be a proper professional adviser or merely a “salesman”? 

If the latter, then the foregoing will not be pointed out to you; and in the majority of cases, you may be none the wiser. But for the conscientious solicitor who knows that 1 in 10 of these Pre-Nuptial Agreements will come to be enforced, there is only one way of doing the job and that is properly.

Equally, thoroughness is essential. Those solicitors that are mere “salesmen” will tell you what you want to hear. They’ll give no forethought to the fact that in so many years’ time you may be sat on the edge of your seat in Court, nervously asking a Judge to deliberate on whether the Pre-Nuptial Agreement should be followed or not. You might cast your mind back to that “cheap” Pre-Nuptial Agreement and that charming solicitor/salesman who told you decades beforehand exactly what you wanted to hear. 

Simply being told what we want to hear is not always the best policy – especially when it comes to Pre-Nuptial Agreements!

If you need further advice or assistance in relation to Pre-Nuptial Agreements or other family matter, please do not hesitate to contact our family team.

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