A royal pre-nuptial agreement

18 May 2018 | Comment


With the royal wedding just a day away, online gossip forums are buzzing with who will be invited, and what dress Meghan will wear. But while this modern-day fairy tale is gracing the front page of the tabloids, little has been mentioned about whether Prince Harry will ask Meghan Markle to sign a pre-nuptial agreement.

A pre-nuptial agreement is a legal agreement made between couples before they get married. It usually sets out how they wish to divide their assets if they separate or divorce.

Meghan may have picked up some legal knowledge of her own from her time on the hit US legal show, ‘Suits’. If she did, she may inform Harry that a pre-nuptial agreement is not necessarily binding in England and Wales.

Section 25 of the Matrimonial Causes Act states that a judge should consider all relevant circumstances of a case when dividing a couple’s assets upon their divorce. No agreement that Harry and Meghan made between themselves could stop a judge from deciding that they should divide their assets in an entirely different manner. So, why have a pre-nuptial agreement at all?

In October 2010 the Supreme Court case of Radmacher v Granatino considered how much weight a court should give a pre-nuptial agreement when considering an application for financial remedy. It was decided that they: “Should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Nobody is under any illusions that most couples are more concerned about whether that certain Uncle will embarrass himself if they pay for an open bar than what may happen in the future should they divorce. Pre-nuptial agreements can give some couples much needed certainty in separation or divorce proceedings, and save the time, stress, and cost of later contested financial proceedings.

Meghan Markle has given up a successful acting career, and moved to London for her Prince. When one party has given up a lucrative career to get married, or care for a family, a nuptial agreement can state that they should be entitled to a greater share of the assets upon breakdown of the marriage and/or ongoing spousal maintenance to reflect the inequality of earning power in the future. Pre-nuptial agreements also give flexibility. It may be that, should Harry and Meghan divorce, Harry would want to keep hold of their house, and Meghan would be happy with a lump sum payment which would enable her to move away from England. A pre-nuptial agreement allows couples with creative plans for dividing their assets to agree their own terms, without a solution being imposed upon them by a judge.

Discussing money does not come naturally to many people; in fact it has been called Britain’s last taboo. But talking about their finances in the context of a pre-nuptial agreement can be the catalyst that many couples need to start their marriage with a basis of good communication and honesty. However, the main advantage of a pre-nuptial agreement remains the protection of assets. It can influence the court to decide who should keep these assets upon separation or divorce. This protection can allow couples to enter into marriage thinking about the exciting life they will have together and not worrying about ‘what ifs’.

If you would like more information or expert advice on pre-nuptial agreements, or any aspect of family law, please contact the family team on 029 2039 1082.

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