Pre-Nuptial Agreements – To have or not to have?

Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

Pre-Nuptial Agreements Part One

Undoubtedly, the answer to that question is to have a Pre-Nuptial Agreement.

These are straightforward documents but are never, contrary to popular belief, merely a case of presenting your fiancé with a document and expecting them to sign it, thereby concluding the matter.

The first issue to consider is perhaps the cost.

Why is it so difficult to get a straight answer from a Lawyer?

Well, in the first instance we are drawing up a document that may never be used but if it is, it is at an uncertain point in the future when circumstances are currently unforeseeable and based upon the circumstances of today. Who can say what circumstances will prevail in 5, 10, 20- or 30-years’ time?

Usually, it’s seen as a simple requirement of most clients to ensure that each party keeps what they bring into the marriage. What could be fairer than that?

And by in large, the above is relatively easy to draft.

But your Lawyer (acting as your professional advisor rather than a “salesman”) has a duty to advise you of the shortcomings of this simple proposal. For example, consider the following: –

  1. Two people with their own wealth and their own children – no further children planned.
  2. Neither wishes to make a claim on the other but just live together into their dotage.
  3. They duly enter into a briefly drafted (and comparatively cheap) Pre-Nuptial Agreement.
  4. It goes in the proverbial “top drawer” and is forgotten about.
  5. One of them becomes critically ill and the other makes considerable sacrifices to look after them for 20 years, including using their own wealth and possibly even depleting it, giving up a lucrative career in the city, etc, etc.
  6. When they pass away, the other party who has cared for them for 2 decades, finds they have neither a house nor a home. And then their adult children miraculously reappear after having left the spouse to care for 2 decades and claim what they see as “their share”.

With the above in mind, it is not surprising that there are complex clauses to accommodate such eventualities.

They are not, however, necessarily cheap because they will need to be drafted by the Solicitor, approved by their client, the other party and critically the other parties’ Solicitor.

They will also endeavour to envisage a whole host of unforeseen ramifications that flow from those unfortunate but largely realistic possibilities.

When first seeing a Lawyer and expecting to have a Pre-Nuptial Agreement drafting for say £1,000, when the foregoing possibility is pointed out, the costs dramatically increases.

This in turn leads to an understandable degree of disappointment.

Ultimately, as I said at the outset, do you want your Solicitor to be a proper professional advisor or merely a “salesman”?

If the latter, then the foregoing will not be pointed out to you. And in the majority of cases, you may be “none the wiser”. But for the conscientious Solicitor who knows that 1 in 10 of these Pre-Nuptial Agreements will come to be enforced, there is only one way of doing the job and that is properly.

Equally, thoroughness is essential. Those Solicitors that are mere “salesmen” will tell you what you want to hear. They’ll give no forethought to the fact that in so many years’ time, you may be sat on the edge of your seat in Court, nervously asking a Judge to deliberate on whether the Pre-Nuptial Agreement should be followed or not. You might cast your mind back to that “cheap” Pre-Nuptial Agreement and that charming Solicitor/salesman who told you decades beforehand exactly what you wanted to hear. Would it that you could find him or her now!

Simply being told what we want to hear is not always the best policy.

Look out for Pre-Nuptial Agreements Part Two to be published tomorrow.

Click here for more articles by Nigel Winter


Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

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