The insider’s guide to English Pre-Nuptial Agreements


Author: Helena Luckhurst


This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK

English pre-nups (PNAs) are now an important consideration for families intent on protecting the family wealth, thanks to the 2010 case of Radmacher v Granatino. Whilst PNAs do not oust the jurisdiction of the English court to have the final say in the matter, they can be determinative when it comes to splitting up wealth in the event of a divorce, as long as they are freely entered into, with a proper understanding by both parties as to the implications of the agreement and make fair provision for each spouse.

There is a lot of available information on what PNAs are but much less information on just who is making them and why. I caught up with our family law partner, Teresa Cullen, to ask her some candid questions about PNAs. I hope you will find the answers illuminating.

Q: So tell us, how many PNAs do you write every year?

A: 20+. Definitely increasing, also it’s strangely seasonal work with a mad rush as we head towards the spring–summer wedding season.

Q: Who is actually making PNAs?

A: Lots of different people. Obviously someone with lots of money in their own right, or where there is a significant imbalance in wealth between husband and wife, but the following are typical candidates too:

  • someone with an interest in a trust, be that a fixed interest or one of the discretionary beneficiaries. Some trustees will insist that a beneficiary enters into one;
  • someone who stands to inherit significantly;
  • someone who has help from the Bank of Mum and Dad with the deposit monies or, if really lucky, the purchase monies of their first home. Mum and Dad are keen not to see their hard earned family wealth being ‘donated’ to a short lived former son- or daughter-in-law;
  • someone with an interest in a business who is concerned to keep the business and their business associates protected from intrusion from their ex, and to avoid having to have the business accounts pored over with a fine toothcomb in court;
  • someone with adult children about to enter into a second or third marriage where the children make their concerns known about their potential inheritance being diverted to a new step-parent (particularly if said step-parent is only three years older than they are!); and
  • someone whose ‘home’ jurisdiction recognises the option of marrying into or out of community of property.

Q: Pre-nups can be a delicate topic to raise (unless you’re a family lawyer)! Please give us some tips.

A: Advisers take heart, it gets easier with practice! As PNAs become more common, they are easier to talk about too. As the world (and London in particular) becomes increasingly cosmopolitan, frequently one of the parties’ home jurisdictions will view the PNA as commonplace anyway, so don’t be afraid to raise the issue. If you are the one getting married, be open: reassure your spouse-to-be that it’s a way of seeking clarity and avoiding any unpleasantness later. It’s much cheaper to set down the guidelines in advance than deal with a messy claim on divorce later on. Very often where there is that imbalance in wealth, the less wealthy party may actually suggest it so as to reassure their bride/hubbie-to-be that they are not gold diggers. Sometimes it can help for the request to be made on the back of a prompt from the family or the trustees.

Q: Are there any common mistakes to avoid?

A: Oh yes – far too many. The most common one is leaving the PNA to be done way too close to the wedding. Not only can this affect its enforceability but trying to negotiate with bride or groom-zilla when they are hell bent on discussing the stag do or seating plan is an unenviable task.

Q: Have you ever had one go so badly wrong it affected the couple’s relationship?

A: Yes, whilst acting for the groom-to-be (GTB) on one of those too-close-to-the-wedding ones, the solicitor for the bride-to-be (BTB) and I had an emergency conference call at 7.00 a.m. one morning to try to resolve the issues. Then I had to tell the GTB what we had negotiated to avoid BTB refusing to walk down the aisle. I was pleased I had known the lawyer for BTB for many years!

Q: Do all your clients agree with the suggestion to have a PNA?

A: Even my powers of persuasion fail sometimes. One client of mine, whom I have acted for on three of his divorces, absolutely refused to make one before his fourth marriage – a multi-millionaire, but his excuse was that he was a serial romantic.

Helena Luckhurst, Partner, Fladgate LLP (hluckhurst@fladgate.com)

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