Nuptials: Concern over badly drafted agreements
Budget nuptial agreements “can mislead parties and distort expectations in lower-income cases” and “should provoke alarm”, an academic specialising in family law has argued.
Professor Sharon Thompson said her research, based on interviews with 23 family law barristers, some of whom were financial dispute resolution (FDR) judges, suggested that not only were pre-nuptial agreements becoming more common, but they were being used by parties with “modest assets”.
Ms Thompson, a professor at the school of law and politics at Cardiff University, said an internet search for ‘prenup England and Wales’ returned “several results offering fixed fee nuptial agreements that offer independent legal advice”.
Wenup.co.uk offered a package including a certificate of independent legal advice for £1,380, with the advice lasting for one hour.
Divorce Online charged £849 for a nuptial agreement including a ‘legal advice statement’ and offered to arrange for the user’s fiancée to get legal advice for £399 plus VAT. Co-op Legal Services provided a prenup package for couples with assets not exceeding £1m.
In an article, Unreported nuptial agreements in England and Wales, for the International Journal of Law, Policy and The Family, Professor Thompson said that in the case of the barristers she interviewed, some of whom were FDR judges, the cost of the pre- or post-nuptial agreement “tended to be north of £3,000”.
However, one barrister who routinely acted as counsel in small money divorces said he had “never been at an FDR” with a nuptial agreement that was “sophisticated and reliable”, which underscored “the problem of badly drafted agreements in needs-based cases”.
The barrister said that in one case “there was a document, probably a page or two, saying in the event of a divorce I keep what’s mine, you keep what’s yours”.
They went on: “It was totally inflexible in that it made no provision for either party, no matter what. My client, he was really wanting to stick by this, and he was totally outraged that that this wasn’t, you know, a shut and closed case. It was really shoddy. It was very unsophisticated and lacked any nuance.”
Professor Thompson said that even when procedural elements normally viewed as helping to counteract inequality of bargaining power were not satisfied – such as independent legal advice or a cooling-off period – nuptial agreements “still tend to be difficult to vitiate”.
In one case, a barrister told her that a nuptial agreement was “insisted upon” by the client, despite his advice that it was not necessary, suggesting “a trend of couples wanting to marry without signing up to marriage’s legal consequences”.
Professor Thompson said that if legislative reform were to make nuptial agreements binding without substantive safeguards in place, the use of such agreements in these lower-income cases could create severe hardship for families.
“A further concern is that nuptial agreements are sometimes used strategically in needs cases to limit the recipient’s claim. Indeed, several interviewees told me that their clients were advised to sign a nuptial agreement in mid-range money cases, even though the level of wealth meant the terms of the agreement were unlikely to be given effect on divorce.”
Professor Thompson said that even if nuptial agreements were deemed unfair, they could still have an impact on the judge’s needs assessment on divorce.
FDR judges used needs provision “as a way of altering the effect” of nuptial agreements, but “when based upon their own personal – and as we have seen, sometimes inconsistent – assessment of needs, the wishes of the lesser-moneyed spouse become less relevant”.
The academic said that with “limited court time and sometimes little inclination to examine the autonomy of the lesser-moneyed spouse”, nuptial agreements were being given effect “to avoid further litigation and associated costs and promote certainty rather than autonomy”.
Issues of abuse or power imbalance were sometimes not raised “for pragmatic reasons that benefit the lesser-moneyed spouse”.
Professor Thompson said legislation on nuptial agreements could provide “clarity, protection, and flexibility”.
She added: “Legislative reform could help push back on a worrying trend, whereby nuptial agreements provide a reason to squeeze the lesser-moneyed spouse’s needs more and more.
“Safeguards based upon fairness will be vital if notions of equal partnership and recognition of non-financial contributions are to be preserved within our law of financial remedies.”
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