2 days ago
‘My husband is much richer than me but I still wanted a prenup'
In the run-up to Elaine Foster's wedding in 2019, she had the typical to-do list of a bride-to-be: sort out the flowers, pick a caterer — and bring up the subject of a prenuptial agreement with her fiancé.
Foster, 56, was determined to sign the legal contract known as a prenup before walking down the aisle. In fact, she said she wouldn't get married without one.
'It was nothing to do with protecting my wealth. My husband is substantially better off than me. I wanted to go into the marriage with us knowing that we were doing it for love, not financial gain,' said Foster, a lawyer at the Milton Keynes firm MacIntyre Law.
'I also wanted to ensure our families didn't worry that they would lose out financially later in life if we separated. I didn't want his children, or mine, from previous relationships to fear that they would lose what their parents had worked for.'
Foster and her husband were ahead of their time. Prenuptial agreements are common in the United States, but were fairly rare in the UK, except among the ultra-wealthy. Now, though, lawyers say they are becoming more popular.
The number of divorces has fallen dramatically over the past 20 years, but the number of prenups has risen. Edwards Family Law, which specialises in divorce, said that there had been a 50 per cent surge in the number of prenups it dealt with last year, compared with 2023. They are particularly relevant in second marriages where you are more likely to have built up wealth before you met.
Without a prenup specifying otherwise, assets are often divided equally according to the 'sharing principle' unless there is good reason to do otherwise. However, a Supreme Court ruling on Tuesday (July 2) has suggested that this principle should not be applied to all assets accrued before the marriage.
The Supreme Court ruled in favour of Clive Standish, 72, who had transferred almost £78 million of assets to his ex-wife, Anna, 57, while they were married for tax planning purposes.
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The assets had been accrued before his marriage and, during a lengthy divorce battle, he argued that they should not be considered as matrimonial assets, even though they had been held in her name while they were together — and the courts, eventually, agreed.
Vandana Chitroda from the law firm Broadfield said: 'It is likely that following this judgment, couples entering into pre and postnuptial agreements will be advised to ensure that non-matrimonial property is concisely defined.'
Charlotte Lanning from Edwards Family Law said that the growing use of prenups was probably a result of people getting married later. 'The average age at marriage is higher, so you may have already bought a house or set up a business. When everyone was getting married in their early twenties, they had not had a chance to build up any wealth yet.
'The prevalence of second marriages plays a part too. If you've had a messy divorce and lost half your assets, you want to preserve what you have left.'
Prenups are not legally binding in the UK, but an important Supreme Court decision in 2010 gave them more clout. A judge ruled that courts should take such agreements into account, provided that they were entered into freely by both parties; that there was 'full and frank' disclosure of their assets; that each party had independent legal advice and the agreement was not unfair.
They typically outline how you would divide your assets in the event of a divorce and are often used to protect inherited money, business ownership or inheritance for children. At the time of divorce, a court will consider the prenup in the context that it was made and the effect it would have on the couple if it were enforced.
'If the agreement only provided you with £100,000 but you had been living in a £2 million house, the court is unlikely to think that was fair,' Lanning said. 'You might have agreed not to take any spousal maintenance, but if you had since been in an accident and were unable to work, then the court would probably rule that you are entitled to some financial support.'
In the end, Foster's prenup was relatively straightforward. They agreed that what each had accrued before the marriage would remain their own, and that there would be no ongoing legal ties such as maintenance payments if they were to divorce.
Anything they accrued after the marriage would be shared equally if they separated. Foster said that this did not include any inheritances, which would be kept separate from their joint finances.
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Foster said: 'We are very straight down the line and didn't want to muddy the waters. Having been divorced before, we knew that it's always a possibility. It's good to talk about these things from a place of love, rather than bitterness or unfairness.
'The way I see it is, If I go and buy a new car, I'm going to insure that car. That's not because I want to crash it or I'm planning to crash it, but because I want to be protected. It's a similar thing for me here.'
