Why You Might Want A Pre Nup And Why You Might Want To Start Talking Soon.

Now that there are no restrictions on numbers at wedding ceremonies and the marriage season is back in force, we might turn our minds to pre nups again and we have two summer developments casting some new light on those.

In July, Mostyn J handed down his judgment in E v L, a case that had involved a marriage between two people in their 60s which had lasted for between 27 and 47 months (the timeline, along with almost everything else, was disputed). If you are able to set to one side the human tragedy of two people playing out these issues at enormous financial and emotional cost, it is a gripping read because the law dealing with finances after marriage has two main principles, neither of which is particularly suited to a short marriage:

• “Sharing” sees the division, usually equally, of what the marriage has generated but you might say, as was no doubt said here “should a spouse win big just because fruits of a long career happen to fall in during the period of the marriage?”
• If the marriage has not built up resources but one spouse has provided the home then does that home become marital (and so become shared equally) immediately or does this happen only over time? But if so, then at what rate? In another Mostyn J case, (S v AG in 2011) Mostyn J thought that following enjoyment of marital property for only 44 months, 15-20% was the bracket.
• Our other tool is “needs”: that each spouse should have the resources to give them a fair start on the road to independent living. Say that there had been no wealth built up during the marriage, what then should a spouse have after 2, 3, 4 year of marriage? Surely they don’t get enough to set them up for life – but if not then what is the reference point? Enough to get them through the next few years? but how are they supposed to cope afterwards?

I have often worried about how the pre-nup flies against that noble step of pushing off into the unknown together, that there is something heroic and relationship-affirming in this step in the pre-nup-free marriage. But against English law’s struggle to deal with short-marriage cases well (in the case above £900,000 had been spent in deciding that the wife should receive £1,515,000), reaching for a pre-nup seems more than justified.

The other development has been some research from San Diego, that couples who disagree on savings and investment decisions are twice as likely to divorce: this is the first time that differences in risk preferences has been identified as so powerful a variable. Put briefly courtesy of the brilliant www.2-in2-1.co.uk team “Couples who had the most dissimilar risk attitudes are twice as likely to divorce, compared to couples with the most similar preferences. Additionally, of all the risk categories listed in the survey, differences in financial risks were the strongest predictor of divorce.”

So, surely:

• if the EvL case points towards having a pre-nup to manage the uncertainty of an early years separation, in the face of hard-to-predict court reactions;
• then the San Diego report tells us to start out early in our pre-nup discussions so that rather than a scramble to complete the work the accepted 28 days before the wedding some of these differences have a chance to be aired and talked through properly.