Expert Family And Divorce Lawyer Alison Hawes Discusses Prenups and Politics

With pre-election manoeuvring, the main parties are under pressure to say which other parties they would or would not get into bed with.

In the absence of an overall majority on Thursday, the real negotiations will begin. And who will be prepared to make what concessions and compromise on their election pledges to get through the door of Number 10?

The Conservative/Lib Dem coalition has frequently been compared to a marriage and parallels could be drawn between the coalition agreement and a pre-nuptial agreement.

For a start, just how binding is it? What if one party changes their mind and votes the opposite way on that vital motion? What is the balance of power in negotiating the agreement?

In all the excitement of getting married the idea of a pre-nuptial agreement can seem unromantic and contrary to the traditional marriage vow of “all that I have I share with you”, but for some people it is an absolute prerequisite – without it there will be no wedding.

Enforceability
The court will not automatically enforce any old pre-nup. The primary requirement for the court to uphold a pre-nuptial agreement is that it was entered into willingly by both parties with a full appreciation of its implications and that it is not unfair to hold them to the agreement.

Are they willing? If one party has greater bargaining power or bullies the other into signing the agreement then the court may not uphold it.

Leaving it late in the day adds additional pressure to make bigger and bigger concessions. For that reason it is advisable to sign any agreement at least 28 days before the wedding. This may not be an option for the politicians unless they began their negotiations pre-election…

Full disclosure is also important. Has each party told the other its true intentions – are all its policies known at the outset?
It is generally advisable for a couple entering a prenuptial agreement to make full disclosure of their respective assets. If they do not do so, it is impossible for lawyers to advise what they may be contracting in or out of and consequently the courts may be less willing to uphold an agreement.

Independent legal advice is also important – both must understand what they could be giving up and what the effect of the agreement will be in reality. 

Is it fair?
If an agreement does not produce a fair result then the court will not uphold it. The question is: what is fair? There are certain givens: any minor children’s needs must be met (and therefore the needs of the parent caring for them). But what are needs? Are they limited to the bare essentials or will they be interpreted more generously? These are questions that tend to be answered in the context of each individual case. However it is clear that a pre-nuptial agreement can assist in ring-fencing existing or inherited wealth owned by one person and prevent a degree of invasion that may otherwise occur if the marriage breaks down.

Review
Circumstances within a relationship can change substantially and it is important therefore to keep any pre-nuptial agreement under review. Not every eventuality can be catered for.

Any coalition would be wise to do the same – certain policies may become untenable in an emergency, for example in the event of a new economic crash.

The General Election result is unpredictable and entering into a new marriage, or coalition agreement, can feel like heading into the unknown. A prenuptial agreement can provide some stability so everyone involved knows where they stand with each other, and the assets they a bringing to the table.

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