Pre-nuptial agreements

 

What should you do if:

-           your partner wants to marry you, but only if you enter into a pre-nuptial agreement; or

-           you want to marry someone who has a lot fewer assets than you.

Obviously those are 2 very different questions, although putting them together like that is helpful in that it instantly shows the background to pre-nuptial agreements.

Before I go on, I need to stress that I am not going to look at any of the legal aspects of pre-nuptial agreements.  I am not even sure how widespread their use is.  Obviously we know, courtesy of Hollywood, that they are a well known, and well used, concept in the U.S.A, or parts of it, in any event.  Here in Australia they are still relatively rare, but I believe their use is increasing.  Years ago they were legally fairly useless, but now courts here are prepared to increasingly give effect to them.  In other countries it may well be that they can’t be used at all, or they can only be used in limited circumstances.

For the purposes of this Section I am going to assume that you are in a place where a court will recognise a pre-nuptial agreement that complies with whatever requirements are set out in the relevant laws in the place where the agreement is made.

So, what is a pre-nuptial agreement ?  Essentially it is an agreement that 2 people about to marry enter into that sets out what is to happen financially if they marry, and the marriage subsequently fails.  This is a matter that is usually dealt with by the laws of the place where the marriage ends.  The purpose of a pre-nuptial agreement is usually to ensure that assets held by one party to the marriage at the time of marriage basically stay with that party, regardless of what the law might otherwise provide. 

Pretty unromantic, right ?

Well, yes and no.

Perhaps it’s best if we start with the second question I posed:

What should you do if you want to marry someone who has a lot fewer assets than you ?

 

Essentially you have 2 options:

1)         you can do nothing, that is just go ahead and offer marriage without taking any steps to protect you financial position; or 

2)         you can contemplate asking your partner to enter a pre-nuptial agreement with you.

This would be a pretty easy question to answer if you had a crystal ball, but unfortunately most people don’t, and even those that do can’t really rely on them.

If you had a crystal ball, the main thing you would want to know how is how long your marriage is going to last.  The longer the marriage, the less need to worry about a pre-nuptial agreement.

But isn’t even the idea of contemplating a prenuptial agreement a tacit acceptance that the relationship has slipped the embrace of romance ?

Nope.  We live in a real world where all sorts of strange and unfair things can happen.  And, as I say elsewhere on this website, you are heading for trouble, and a short marriage, if you think that marriage is only all about romance.  Marriage is a partnership, and those about to embark on it should only ever contemplate starting that journey with their eyes wide open and their heads screwed on straight.  

In a situation where one party to a marriage has considerably more assets than the other party to the marriage, it is perfectly valid to contemplate what might happen:

-           it might turn out to be a very short marriage;

-           depending on the law, a short marriage might be enough to give the assets-light partner a right to a chunk of the assets-heavy partner that almost no one would consider to be fair;

-           if the assets-heavy partner goes into the marriage without a pre-nuptial agreement, that might alienate them from the rest of their family, not a great thing for someone hoping for a long and happy marriage.

And it is also worth considering:

-           your age, and your age relative to that of your partner;

-           whether you already have children;

-           the nature of the assets involved, particularly if they include a significant family business;

-           how your assets would likely be split on a marriage break-up according to law.

With respect to these latter circumstances, the younger you are, the less you need to worry about your assets, because you should have sufficient time to recover from any divorce-created losses. 

 

The greater the age difference between you and your partner, the greater the likely risk of divorce in the common perception (and I have no idea whether there is any basis for this perception).

If you have children, they will be concerned that your marriage might stop them from getting what they see as being rightfully theirs.  Of course, that is nonsense in the sense that what your children are rightfully entitled to is whatever you choose to give them.  Full stop. 

 

Unfortunately, although strictly speaking it is none of their business, it is not unknown for children to indicate their displeasure at a parent’s re-marriage by being as unpleasant as possible in as many ways as possible.  Not actually a bright idea, given the parent’s ability to disinherit them, but it happens.  Lots.

If you have a significant interest in a family business that involves other members of your family (parents, children, siblings …), you might be concerned that if your interest in the business is part of what is up for grabs should you divorce, that might adversely affect the way the business operates.

If you are in a jurisdiction where pre-marriage assets are considered common property of the marriage regardless of the length of the marriage, you might be concerned that if your marriage is only short, you will unfairly lose half of your assets.

And, of course, in any situation where there is a significant difference in the asset situation of those wishing to marry, there is no way that the partner with the bulk of the assets can ever be certain that their partner is marrying for love only.   

So, I am going to squib the answer to the question I am looking at by simply saying that if you wish to marry someone who has a lot fewer assets than you, there may well be good reasons for you to try to protect yourself with a pre-nuptial agreement.  It might be unromantic, but romance is only one part of marriage. 

And, as I will mention in a moment, arguably if your intended partner is willingly to enter into a pre-nuptial agreement, they are essentially saying that they are marrying you for love, not money.  That puts you in a strong position to go all out with the romance stuff.

What should you do if your partner wants to marry you, but only if you enter into a pre-nuptial agreement ?

 

Years ago if you had asked me this question my advice would have been along the lines of: find someone else who isn’t thinking about the end of the marriage before it has even started – that’s about as unromantic as someone can get (and that was coming from me, Mr. Unromantic !). There are probably still a lot of people around who would think that that’s good advice and reasoning. 

These days I wouldn’t be so unequivocal in answering this question.  In fact, my advice now is that if the pre-nuptial requirement is the only concern you have about entering the marriage, then I would advise you to marry, provided the actual pre-nuptial agreement didn’t contain anything that was unreasonable.

Why the change ?

Nothing that I can pinpoint other than sitting down and thinking about this whole thing a bit.

I suppose the starting point when you come to analyse pre-nuptial agreements is to look at why they’ve come about.  I pretty much did that above in looking at the first question I looked at.  When you do that you can see that there can be circumstances in which it seems reasonable for someone to want a pre-nuptial agreement.  Where there is a big difference in the wealth position of 2 people, it is completely natural that the person with the wealth would be concerned that the other person wants to marry them for their money, rather than for who they are. 

 

Completely human, completely natural.  And there’s really no way that the wealthy person can satisfy themselves on this issue.  Except, now there is. 

As I’ve already foreshadowed, a willingness to enter into a pre-nuptial agreement by the ‘poorer’ partner is tantamount to a declaration that that partner is not marrying for money.  If this issue can be disposed of as an issue between the partners, then the coast is clear for them to have a happy romantic marriage. 

 

It’s also a way of preventing friction arising from the wealthy partner’s family, be they parents, siblings or children.  However, that in turn suggests that a person’s willingness to enter into a pre-nuptial agreement might make it seem to third party eyes that the person is somehow some sort of lesser person.  There’s some danger there, but I would think that it is something that time would help overcome (and most people would be preferring to deal with someone who is genuinely in love rather than a possible gold-digger).

I said earlier that I would recommend that you accept an offer to enter into a pre-nuptial agreement provided that it is not unreasonable.  Unfortunately what is reasonable is very much a matter of your particular circumstances, and that of your partner.  In that regard I would recommend that you not sign a pre-nuptial agreement unless you have received independent advice from a family law specialist. 

Strange that, a lawyer advising you to use a lawyer.  Believe it or don’t, lawyers can be useful sometimes.  And this is one of those times, as we are in a fairly arcane area of legal knowledge.  But then doesn’t this contradict everything I’ve said above ? – undoubtedly your partner will need a lawyer to prepare the pre-nuptial agreement, so that means lawyer vs. lawyer.  How romantic can you get ?

Well, we’re probably getting to the edges of the envelope, but then can I remind you that we’re at we’re at because of the relatively unusual circumstance that 2 people with a wealth imbalance want to marry, and this whole process, horrible as it is, is probably the only sensible way that that marriage can happen.  It’s not standard operating procedure for Cupid, but at least it involves Cupid.

And it is worth mentioning that just as the partner with the money may be justified in trying to protect themselves, that applies equally to the partner without the money – they are just as justified in protecting themselves.  Hence the lawyers.

As for what is reasonable, while I can’t go into the nitty-gritty, I can make some broad comments.  In your pre-nuptial agreement, I would be wanting to see that there are no circumstances in which the agreement leaves the “poorer” partner high and dry – that is, essentially worse off than if they had never entered the marriage. 

 

I would also want to see some sort of reverse tapering, so that the longer the marriage, the more generous the final provision for the “poorer” partner.  If there is still the possibility of having children, then that should also be factored into the agreement in a way that provides for increasing generosity the older the children are at the time the marriage ends.