A Plea For Short-Term Rather Than Life-Long Pre-Nups

Ok, ok, I get it second blog in a month lauding the newsletters from two-into-one, you will wonder if I am actually reading anything else. Well yes – it just happens that their latest contribution has struck another chord around pre-nups, a theme of the moment.

Last week, in this blog found here, I suggested that:

• Despite the lack of romance, perhaps there is a role for a pre-nup because of the lack of clarity as to outcome in English law if a marriage is not long-lasting; and;
• I suggested that parties should start early to give time for authentic, relationship-enhancing discussion – If the conversation starts only just before the wedding there is less chance of recognising different risk capacities that so often (we now know from research) put at risk marriage stability.

This week they provide another pointer for perfect pre-nups which is around change.  It might be summarised as follows:

1. With good advice and enough time, your pre-nup will appropriately reflect the values of the parties;
2. Though in my experience, too often what it actually reflects is the fears as regards commitment of one party: often one party is the one holding back and is hesitant about the whole-hearted commitment to the family of choice over the family of origin, which is why, where assets are being trickled down by the parents on one or both sides, there can be such careful attempts to ring-fence and protect them from the fiancé(e)’s claim;
3. But what we know is that relationships soften and change.  Worries dissipate.  The relationship moves, through the agency of pragmatism, time, care, commitment, shared experiences (perhaps including children) towards greater integration.  Individuals become more fused into their spouse’s family of origin; and
4. The real problem of the pre-nup is then obvious:

• • It is that the pre-nup has fixed a structure to deal with the future contingency of separation according to one set of values;
  • [often those values are ones that emphasise separation and independence at the cost of co-operation and partnership];
  • But it is likely that the values of the relationship, (the ones that surely should be the ones underpinning the principles applicable) will have become by the time of that separation values of community.

And we can now think with greater care and insight about this change because it is touched on in UK Marriage News no21.33 [you too can put yourself on their circulation list!]  The authors discuss Scott Stanley’s work accessed here where he considers the ways that the separate parts of “you” and “me” can adopt the third identity of “we” in various healthy or less healthy ways.

Reading this work we are surely drawn irresistibly towards a third principle that should inform many of our pre-nups: the life-long pre-nup should be a rare exception.

• If you tell me that a pre-nup is needed, I might well buy-in: none of us want to see couples committed to long-litigation because of the absence of clarity in the English law over ‘the short marriage’  when a pre-nup could have clearly delineated rights and obligations.
• Beyond this, starting our discussions about pre-nups and supported by relationship professionals alongside lawyers, the couple may identify and start to address some of the issues, including those around financial risk that otherwise may come to upend the marriage.
• But here is the third principle: think about a short-term commitment only in preference to a pre-nup that lasts for all time: Surely we should not be fixing prenups for couples in their twenties that aim to calibrate what is needed twenty, thirty or forty years or more into the future, when they are two or three times their current ages.

And yet life-long pre-nups are so often the norm: the pre-nup that expires after a period is the exception rather than what, I suggest it might need to be commonplace.

Mostyn J commented as follows in one of the earlier prenup cases . “The significance of the effluxion of time is, of course … that with the passage of time circumstances eventuate in a way in which the parties have not apprehended, and this is one of the principal reasons why the courts look most carefully at the fairness of justifying an old, in the sense of it happening a long time ago, prenuptial agreement.”

That may be the common sense approach and how many people wanted the law to develop back in 2013 but parties would be foolish to assume that a prenup is going to be interpreted flexibly in this way: if needs are met at a basic level and children are provided for then a properly prepared pre-nup is very likely to be the starting point in the discussions but also the finishing point too and the fact that it was written thirty years ago in the middle of a pandemic is not, on the law as it now stands likely to be treated as a defence.

So to confirm:

1. Start your discussions early so that you have time to engage with authentic curiosity in how you each see the future. You then give yourself time to better understand each other’s perspective and thus build your communications around solving problems, putting the future marriage on firmer footing.
2. Recognise that things will change – probably in ways none of us can imagine before the wedding. The likelihood is that you will progressively integrate your lives so be very careful about writing a pre-nup that lasts as long as you both do: however, good your lawyers, you are going to struggle to provide a fair system for asset division two, three or four decades away.
3. That reminds us to come to this question being as mindful as possible about the problem you think you need to solve. There is no standard pre-nup.  The document that you write should be focused on dealing with your real worries (eg “what if we separated after three years and we get lots of conflicting advice about what is a fair settlement?”.  Cover off those worries and then leave the general law to deal with the rest of it.