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Divorce law blog

“A second marriage is the triumph of hope over experience” - but what about a fourth?

15/08/2012   By: Nigel Shepherd

Are pre-nuptial agreements (often called pre-marital agreements now) worth the paper they are written on?

John Cleese and his girlfriend Jenny Wade celebrated their wedding on the romantic Caribbean island of Mustique at the beginning of August. It was the Monthy Python and Fawlty Towers star’s fourth marriage. When he got divorced from his third wife Alyce Faye-Eichelberger after 16 years of marriage a court in California ordered him pay $12m plus very high maintenance for 7 years, when he will be 76. He said that he had to go back on the road with his aptly named “Alimony Tour” to help pay for it and that he was likely to ask Jenny to sign a pre-nup. Once (or more than once) bitten twice shy.

John apparently had a pre-nup when he married Alyce, but he’s said that it wasn’t upheld. I don’t know the details and Californian law is completely different to how we do things in this country, but in any event a lot has changed in the last couple of years when it comes to how effective pre-nups are if you are getting divorced here. So how binding are they now and in what circumstances might you want to consider having one?

Are they binding?

In England & Wales a pre-nup isn’t binding in the same way as for example a contract to buy a car. If you and your partner are getting divorced you can still ask the court to look at your case and come up with a different result to what is set out in the agreement. But after a ruling from the highest court in the land in 2010, it is much harder than it used to be to back out of what you signed up to. If your partner didn’t tell the truth about the financial circumstances or the deal leaves you without enough money to house yourself or put food on the table then you may be able to override it, but otherwise you’ll probably be stuck with it.

When may a pre-nup be worth considering?

You don’t have to be rich to benefit from a pre-nup, but to make it worthwhile there do have to be assets or income that you want to protect if there’s a divorce. The following situations are examples of where a pre--nup worth looking at:

  • Where you are getting married later in life and want to leave money that you’ve made up to that point to children from a previous relationship.
  • Where you already have valuable assets that you want to keep separate from wealth that is built up during your marriage.
  • Where you don't want to have to share with your new husband or wife money or items that you received through inheritance or gifts.
  • Where there are international aspects. This may be because you or your partner come from a different country or you are working or have property abroad. You don't have to be a celebrity like John Cleese to have foreign connections. More and more people are marrying people from another country or are spending short or longer periods of time somewhere else in the world.

It is vital to take expert legal advice if you are thinking about having a pre-nuptial agreement. A badly drafted pre-nup is not likely to achieve what you want and may in fact make things worse. If there is an international angle you may well also need advice from the foreign family lawyer.

As John Cleese found out, the way that different countries deal with splitting the assets or maintenance varies enormously and an effective pre-nup can make a huge difference.

You can find more information about pre- and post-marital agreements in the finances section of this website.

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