Pre-Nuptial Agreements and the Law: BBC 3 Counties Interviews Amanda Melton of IBB Solicitors

The Law Commission has said that Pre-Nuptial Agreements will be enshrined in law under plans to reform the divorce industry and reduce the number of court cases between former partners. Experts are predicting there will be a surge of interest in Pre Nups . Amanda Melton is a partner at IBB Solicitors. Amanda Good Afternoon to you.

AM: Good afternoon.

What is a pre-nuptial agreement?

Interviewer: In simple terms Amanda, what is a pre nup?

AM: What is a Pre Nup? It’s a means of deciding how you’re going to regulate the terms of your marriage breakdown in advance. So in simplistic terms what they are expecting us to do is look at a marriage as a form of business contract. So if you entered into a business contract, you wouldn’t necessarily do so without looking at what your rights and responsibilities are and entering into a marriage is fairly similar. So it’s a document that would set out what you’d expect and what you’d look to expect to happen in the event your marriage eventually breaks down.

Interviewer: Isn’t that sad. I mean there’s little cupid, little fat cupid with his arrow ‘pchung’ and he’s got you and the whole thing, shall we get married , I love you………..by the way, here is a contract, please sign this.

AM: It’s not the easiest of subjects to approach, at least that’s what my clients tell me anyway. But the intention is of course that it saves money at the end of the day because the idea is rather than spend the money when it all goes wrong, you spend the money up front, see your lawyer at the beginning before you get married. But as you say, it’s not terribly romantic.

Interviewer: So you could have two people in a lawyer’s office, they’re madly in love just setting about an agreement about who gets what just in case.

AM: Well it’s even worse than that because they would have to be in separate legal offices and be taking independent legal advice about what they should be doing.

Interviewer: What is that like a legal version of Mr. and Mrs.?

AM: Exactly.

Interviewer: I understand the legality, it makes legal sense. But it just kind of….You are setting off on this lifetime of love and adoration but you’re setting out the eventual F………in the end. It can’t go well.

AM: Well I think that is why historically people haven’t been particularly keen on them because you are really almost admitting that the marriage is doom to failure before you even embark upon it. Not at all romantic but the other way of looking at it is of course people do spend huge amounts of money for divorce proceedings. And if we narrow that down, all for the good of the client at the end of the day.

Interviewer: So what can be covered under a Pre Nup, Amanda?

What does a prenuptial agreement cover?

AM: Well, we look at what the assets are that each party….a lot of pre nups deal with assets that are brought to the marriage perhaps by inheritance from family that people have already got. And then you can recompense those so that if you have a later divorce you say that those assets that you brought with you to the marriage will not be taken into consideration. You look at the property you acquired during the time you are together, and what you want to happen to that; whether it should be divided in accordance with the contributions you’ve made or some other way.

Interviewer: Can you stipulate that if we have children what happens to those little people?

AM: Yes you can. Most pre nups deal with the financial side of things but one of the things which can complicate it that unless you provide for every eventuality, it may fall down at the last hurdle effectively. So essentially we must provide. Are we going to have children and of course that is not an easy question to answer at the outset.

Interviewer: What happens Amanda if I’ve got a pre nup, OK and somewhere in the line I’ve got a rich relative somewhere in America an old Baron dies and leaves me fifteen million dollars. Can I say just in case that happens it’s a pre nup? You can’t have any of that?

AM: Yes you can say that one is a pre nup. Yes.

Interviewer: Actually I’ve got a rich cousin and an uncle in America. So you can stipulate that particular detail.

AM: Yes you can stipulate that. And as the law stands at the moment, you know as long as you’ve entered into that agreement at arm’s length, and you know what you’re doing when you enter into it and you’ve each had independent legal advice. It would even most probably be upheld now.

Interviewer: So what happens if you’ve got two young people who are madly in love. Cupid has shot his arrow ‘piung’ and he’s got them, right. And they’ve both setting off, they are struggling to get a mortgage….Along the way, she becomes really famous and earns lots of money and they’ve formed a pre-nup. Can the husband then say, I fancy a bit of that earnings there. Can he then say I want some of that?

AM: Well at the moment , yes he could, because that would be an asset which would be required during the pre-nuptial.

Interviewer: But could you say if you become rich and famous I still want a slice of that cake?

AM: Yes you could. Yes you could for example say that if the assets reached a specific level, that a certain percentage goes to the party that doesn’t have the assets. You could potentially. The difficulty with the move, that you’re actually looking at what may or may not happen in the future and trying to cover every eventuality. So they are actually, they are quite difficult to draft because obviously you don’t know about people’s circumstances will be over time….

Interviewer: Is it just rich people? If you’re very wealthy [high net worth] clearly you want a pre nup because you don’t want to give away your money to some ex floosy somewhere. But what about normal people like us?

AM: Average people tend not to look at pre nups quite so much because they probably don’t have quite so much to protect but they are becoming more and more popular. I have been instructed to draft some on cases where there are relatively limited assets. It is something which is growing, yes.

Interviewer: Would they improve things?……Would they improve relationships if you know from the outsets, what are the pitfalls, what the eventual cost could be ?

AM: There’s a question……who knows? That’s quite a difficult one to get into isn’t it. I suppose when you are over the initial hurdle of being approached by your future partner or future spouse to say he or she wants a pre nup, then at least you both know where you stand but on the other hand that may encourage people to stay together for the wrong reasons. I don’t know.

Interviewer: Amanda nice talking to you, I wish you well. Amanda Melton a partner of IBB Solicitors.

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If you are considering getting married or entering into a civil partnership but want to try to protect your assets as much as possible in the event of future relationship breakdown, please contact one of our Family Lawyers who will be able to assist you with your enquiries. Please call us on 01494 790058 or email familylaw@ibblaw.co.uk.