1 November 2021

Prenuptial Agreement worth its weight in gold

By Zuzanna Pogorzelska, Solicitor, Hayes + Storr.

Kirsty Bertarelli is a model, songwriter, and former beauty pageant winner. She is now, also, the richest divorcee in the UK having secured a £400 million settlement in her high-profile divorce from pharmaceutical billionaire, Ernesto Bertarelli.

Following news of the settlement, family lawyers concurred that “a good prenuptial agreement, entered into with all the right safeguards, is worth its weight in gold.”

Some might say that Kirsty is very fortunate, however, she could have walked away with a lot more – at least half of Ernesto’s £9.2 billion wealth. What saved Ernesto’s fortune was a prenuptial agreement the couple signed in Switzerland.

Prenuptial Agreements or ‘prenups’ as they are commonly known, are contracts between two parties who wish to marry, which set out how the finances should be organised in case of divorce.

To some, it might seem unromantic, however, a prenuptial agreement is indisputably a very handy tool to protect one’s assets, inheritance, or even a possible debt. They can also help remove uncertainty and offer protection from protracted legal battles over who gets what if the marriage breaks down.

Prenuptial agreements are not enshrined in any UK statute, which means that they are not legally enforceable, therefore many couples wonder what weight such a document has and some fail to see the point of having one drafted.

The landmark case of Radmacher v Granatino has provided some very useful reassurance. In this case, the court found that prenuptial agreements should be binding unless considered unfair. It is therefore of vital importance that both parties seek legal assistance when preparing and entering into a prenup to avoid pitfalls and ensure that it will be held up in court.

To make a prenup as watertight as possible, certain conditions must be met. Each party must enter into the agreement with full knowledge of their future spouses financial circumstances. A solicitor will evidence the information to a judge by way of an exchange of financial disclosure between the parties. Both parties will be asked to provide documentary proof of any assets they have (bank statements, property, or business valuations, etc). Once both parties have seen the disclosure, the figures are inserted into schedules which are annexed to the agreement.

The second important factor is obtaining legal advice. Each party must be represented by a solicitor who will ensure their client understands the meaning and the implications of the document they are about to sign. This practice removes any presumptions of a party being forced to sign the agreement or misunderstanding the nature of the document. It is highly advisable that a solicitor prepares the document and ensures that it includes all the required clauses.

The third requirement is to ensure that the document does not deprive any of the parties of the means to meet their own needs, and the needs of any subsequent children. An open and frank discussion with a solicitor followed by an analysis of the parties’ assets is the best way to ensure that the document would be upheld in court.

Timing

Timing is another factor which can potentially weigh in on whether the judge will follow the prenuptial agreement or not when determining the issue of division of assets. It is essential that both parties have not been rushed into signing and have had sufficient time to consider the document. It is advisable that a prenup is signed at least 28 days prior to the wedding and the parties should ideally consult with a solicitor at least three months before the wedding.

It is important to point out that prenuptial agreements are extremely flexible and can be tailored to any set of circumstances. They should be reviewed periodically, especially after occurrence of important events, such as a new business venture or the birth of a child to ensure the document is the best representation of the parties’ intentions.

Why are millennials signing prenups?

• Millennials are getting married later in life and therefore often acquire significant assets before getting married. The average age at which heterosexual couples marry has reached 35.7 years for women and 38 years for men, according to the latest official figures.
• An increasing number of young adults are given money from their parents or grandparents or other family members for a house or deposit, so there is external pressure for them to get a prenup.
• Statistics show that over 40% of marriages end in divorce. Around half of these are expected to occur in the first 10 years of marriage. Millennials are better informed of the risks than previous generations.
• One party may already have equity in a property before getting married or might have a larger deposit than their partner. Because of this, they are more likely to request a prenup to protect their assets.

Postnuptial agreements

There is also the option of the postnuptial agreement or the ‘postnup’, which is drafted and signed after the wedding has taken place. The main difference between a prenuptial agreement and a postnuptial agreement is that you can only get a prenup before you are legally married, but you can get a postnup any time after getting married.

Back to the Bertarelli settlement, some have suggested that if Kirsty Berarelli had issued the application for financial remedy in the UK courts (to which she was entitled as a UK citizen), the court would disregard the Swiss prenup and order a 50/50 division of assets, since unlike continental Europe, prenuptial agreements are not enforceable in the UK. However, the general consensus in light of the Radmacher v Granatino case, is that the Bertarelli prenup would have been given considerable weight in court, and the judge would have made the decision to uphold it. However, The Beratellis were prudent not to engage in financial proceedings in the UK and have saved themselves astronomical costs of such litigation.

Of course, not everyone is as affluent as the Beratellis, however the financial circumstances of many warrant the security of a prenuptial agreement.

For more information call 01328 863231 and ask to speak to Zuzanna Porgorzelska in the family department. We offer a no-obligation reduced fee initial appointment at a cost of £100 + VAT during which the clients are offered a range of advice relating to prenups before deciding whether such a document is the way forward for them.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.