Beware of prenups, but not because they are unromantic

What if Beauty and the Beast had a prenup? Eduardo Rivero / Shutterstock.com

Imagine if the Beast had asked Beauty to sign a prenuptial agreement? It would certainly dilute the story’s romance if the Beast had said: “you can read the books in my library Belle, but you can’t marry me unless we contract that this is all mine if we get divorced.”

Prenuptial agreements, or “prenups”, aren’t particularly romantic. But the issues with them are much more serious than the prospect of a fairy tale wedding being tainted by contractual negotiations. In many cases, agreements designed to protect the wealth of one spouse could leave the other in a vulnerable position in the event of divorce.

The number of prenups in both the US and UK is rising. There is a growing public perception that anyone with money would be foolish not to sign one before getting married.

Prenups are a relatively recent phenomenon in England and Wales, and are not legally binding. But now the Divorce (Financial Provision) Bill, currently making its way slowly through the House of Lords, advocates making them legally binding.

Lessons from the US

In the US the relevant law on prenups varies from state to state, and in New York they have been binding since the 1980s. After speaking to attorneys in Manhattan about their experiences of prenups for my research, it became clear that these agreements are fraught with difficulty. Every attorney I interviewed said that when a couple is entering a prenup, the playing field is never even, because it is rare for both parties to want an agreement. One attorney told me that some clients want to be reassured they are not marrying a “gold-digger” and so put pressure on their partner:

She did not want to sign the prenup. He insisted … it was almost like it was a test. And because she said she would do it, [he knew] ‘ok you’re not marrying me for my money’.

Other clients wanted to keep their assets strictly separate from their prospective spouse:

I represented a woman who was marrying a doctor. And the doctor was giving her nothing in the prenup … I said to … the doctor … ‘What’s she getting under this agreement?’ … And he looks at me and says, ‘Marrying a doctor!’ … That happens frequently, and many people will take less … because they love the person and they don’t think the agreement will ever come into effect.

It is almost universal for individuals to be idealistic about the probability of their own divorce, while being realistic about the probability of divorce for everyone else. This “optimism bias” can lead to people with fewer assets signing prenups that excessively favour the wealthy partner at their own expense.

Beware of ‘optimism bias’. Kostenko Maxim/www.shutterstock.com

Leaving one spouse vulnerable

Though nobody has a crystal ball to know the future impact of a prenup, the harm caused by an agreement that prevents any claim on the wealthy party’s assets is predictable. For example, the less wealthy spouse, who is usually the wife, will more likely make career sacrifices to look after children, or to care for elderly parents. The damage this does to spouses’ earning capacity can be irreparable, so that even a spouse who was financially independent when signing the prenup can still end up in an economically vulnerable position on divorce.

The wealthy doctor in the extract above might also regret it, if while he is out at work his wife stays at home and writes the next Harry Potter novel. He supported her financially to write the book but will not get a penny of the profits on divorce. Put simply, there is no way of knowing how circumstances will change after the prenup is signed.

Amal Clooney labelled a gold digger.

The media has helped to embed the perception of the prenup as unromantic but essential. After actor George Clooney married human rights lawyer Amal Alamuddin last year, reportedly without a prenup, she was labelled a “gold-digger”, a ludicrous accusation given her own lucrative career. Representations of prenups in the media and popular culture are problematic because of this: the focus is on the wealthy spouse keeping the wealth, but the rights and protections the other spouse is asked to give up under a prenup are often ignored.

The future of prenups

Prenuptial agreements, though not binding in England and Wales, will be approved by the court provided they are not unfair. In 2014, the Law Commission recommended reform of this position that would make prenups binding. But it has also proposed that couples should not be able to sign a contract that removes their future responsibility to meet each other’s needs on divorce.

This is extremely important given the economically vulnerable position many spouses are left in. Research shows that the wife challenges the prenup in 85% of cases in the US. This is unsurprising given that caregiving responsibilities and career sacrifices in marriage are still divided on gender lines.

As a result, it is worrying that the bill currently making its way through the House of Lords advocates binding prenups in England and Wales. Even worse, it does not currently propose safeguards that account for the needs of spouses at the time of divorce.

If this reform is introduced without these safeguards, it would be particularly harmful for people entering prenups with less money and power than their partner. It is crucial, therefore, to appreciate that this reform would affect much more than just romance.

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