It has been reported in the Daily Mail that a ‘spike’ in divorce rates is being blamed on unhappy husbands and wives cashing in on prenup deals.
Extreme caution should be exercised before reading anything into this headline, however.
Specifically the article criticises ‘loyalty clauses’ in the agreements and suggests that husbands, concerned that if the marriage carries on too long they will have to pay more, are divorcing their wives sooner rather than later.
Pre-nuptial agreements are sometimes drafted to include additional ‘slices’ of entitlement based on the length of the marriage. These can either be drafted in percentage terms or by reference to specific amounts. Entitlements can be drafted to be triggered after a sets increments of time, or they can be triggered gradually depending on the number of ‘days’ of the marriage.
The principle is often the same regardless of the approach. They provide that the longer the marriage endures, the greater the entitlement under the terms of the agreement.
These clauses effectively mirror the position in law
In the absence of a pre-nup, after a long marriage there is going to be a greater argument that the matrimonial assets should be shared equally than after a very short marriage.
Curiously, it is not being suggested that such an approach in law causes marriage breakdown. Instead, the focus and criticism appears levelled solely at the pre-nuptial agreements and specifically these types of clause.
The article should be viewed with some scepticism. This type of provision is quite commonplace where classes of asset are to be ringfenced under the terms of the agreement, but it is likely their value will grow over time. There can be other situations where these types of clause are seen. Their inclusion in a pre-nup does not make a divorce any more likely than a clause stating in the pre-nup where the couple will live once they’re married!
Pre-nups can bring reassurance
The reality is that the clients we have acted for who’ve entered into pre-nups have the reassurance of approaching the marriage knowing the default position that will be considered by the Courts in the unlikely event that they ever divorce. This gives them certainty and an added level of reassurance when compared with a non-pre-nup marriage, where there is complete ambiguity as to what settlement might be appropriate should the couple ever go their separate ways.
It is a shame that this headline appeared as it is only likely to deter some couples from looking at the option of a pre-nup where it might be in both their interests.
So, if pre-nups haven’t caused the reported surge in divorces then what is the cause?
There has been a modest rise in the reported number of divorces, but this is extremely unlikely to have anything to do with pre-nups. It is more likely to be on account of the increase in the rate of marriage between 2001-4 and the median average reported marriage length being 12 years. For this reason, it was inevitable that 2017 was going to bring about a modest rise in divorce numbers.
Andrew Barton is a divorce specialist and family law partner at Stephens Scown. He was recently included in the Citywealth Leader’s List, a list of the best advisors in private wealth in the world. To contact Andrew about pre-nup loyalty clauses or any other family law matter, please call 01392 210700, email solicitors@stephens-scown.co.uk.