Pre-nups – where “my money” trumps “our commitment”

The Law Commission is about to pronounce on pre-nups. Until recently, judges have been reluctant to enforce agreements made by couples whose circumstances when they divorce may be very different to their circumstances when they married.

If, as expected, the Law Commission proposal is to give greater legal weight to pre-nups signed freely, then I’m fine with that. You pays your money, you takes your choice.

But for the overwhelming majority of us, I can see no good reason to want to go within a million miles of a pre-nup.

The romantic conversation is hard to imagine for starters:

“Darling, I love you so much and want to spend the rest of my life with you”.

Drops to one knee.

“Will you marry me? And by the way, I need you to sign this, which says I get to keep most of what I’ve already earned”.

No, nor can I.

The message a pre-nup sends is “my money” is more important than “our commitment”. In other words, “I don’t love you” and “I don’t trust you”.

There may be situations where one person has a family inheritance or children from a previous marriage. But even in these cases, a trust does a better job because it releases ownership and sends a big signal about my willingness to sacrifice on behalf of others. Pre-nups retain ownership and send a big signal about me hanging on to what is mine.

Even if I were a massively overpaid footballer, wishing to protect my income from the risk of a short-lived marriage, I still couldn’t really say “If you love me, you’ll sign this”. It would be just as legitimate to get the reply “and if you love me, you won’t”.

Pre-nups put money before commitment.

Now I have to admit I can’t be 100% sure that pre-nups precipitate that which they are trying to avoid. I know of no study anywhere showing that pre-nups either help or hinder marriage. But if I were a social scientist making a prediction, my clear hypothesis would be that pre-nups increase the risk of divorce.

There are three reasons:

  • Prenups make you think about divorce. One of the more robust findings in social science is that thoughts of divorce predict actual divorce. If you think about it, you’re more likely to do it. Pre-nups start from the possibility of divorce. When trouble hits, well, you’re already thinking about the exit and never really committed anyway.
  • Prenups base the marriage on equity or fairness instead of a promise. This might sound reasonable but it’s not. Prenups turn marriage into a contract. If I do this, you will do that. That’s fair. But the problem with contracts is that they need to be monitored for fairness. That inevitably turns thoughts to unfairness. When life gets unfair, and your relationship is based on fairness, you’re more likely to split up. Marriage is supposed to be a promise to stick around for life. For better for worse.
  • Finally, prenups remove one big need for sacrifice, which is especially key to men’s commitment. “What I have is yours, my darling, except for my money”. So that’s not really everything. So you haven’t really committed.

Making pre-nups more enforceable won’t remotely threaten or undermine marriage. They will undermine individual commitment. But I think so few people will either need one or dare to ask for one as a condition of marriage that they will never become the norm.

Pre-nups are only for the rich and the uncommitted.

I asked my wife what she would have said if I’d asked for a pre-nup when I proposed to her.

“Get stuffed”, she said.


7 thoughts on “Pre-nups – where “my money” trumps “our commitment”

  1. Comment from Disqus, Jonathan James: Every pre nup I’ve ever drafted had the effect of preventing the marriage from taking place.

  2. Comment from Disqus, Chris Blainey: Well done excellent contribution along these lines to Radio 4 Today programme.
    Both the tone and content came across well as practical and sensible rather than arcane and stuffy.
    Good to hear both the rationale and illustrative anecdote made accessible.
    Your presentation is compelling.

    They will use you again, i hope, unless they particularly want to cast the pro-marriage side as out of touch.

  3. Harry I absolutely get where you’re coming from, but from the perspective of a lawyer with a heart who sees the way that on divorce bitterness can easily be transposed to arguments over tthe children or money, I do think that there are some cases where pre nups can support rather than undermine marriage. In fact they enable a marriage to take place in circumstances where fear might otherwise prevent a commitment.
    Take for example a situation which is increasingly common, namely those who have lost their first marriage through divorce or death, where one of the parties may have accumulated considerable wealth which they would above all wish to devolve to their children in the event of their own death or future divorce.
    I can well imagine a situation in which the children’s mother would have left her estate to her husband fully expecting him to leave their joint estate to their children. For a father in those circumstances to face the prospect of a conflict between his new wife and his children either after his death, or on divorce, it would represent also a conflict with the feelings of loyalty to the memory and commitment to his first wife and their children.
    If he avoids the issue by not getting married that man is denied marriage with the person with whom he would wish to share his remaining days only by fear. That is never a good reason to do or refrain from doing something.
    Rather if a couple enter a marriage understanding that we all come with “baggage” and that baggage may be pre-existing financial obligations to offspring from a previous relationship, then in the same way that anyone marrying someone who is the beneficiary of a family discretionary trust knows full well that they will have no “rights” as such to any share of that money, then they will marry for the right reason, and that fear is removed.

    You can’t generalise as to whether this law is helpful or unhelpful to people thinking of making that commitment, it really depends on both the circumstances of the case and whether the motive is honest principled fair not only to the people concerned but to others who may be affected.
    Norman Hartnell

  4. Thank you Norman. I agree that the example you cite might well benefit from some sort of legal agreement. Yet I still wonder if a pre-nup is the best way to do this. Why not a trust? A trust relinquishes control and puts money where mouth is. A pre-nup doesn’t secure money for the children of a previous relationship, It merely secures money for the parent with no obligation to pass that on to the children. Is that a tough but fair assessment or am I altogether wrong?

  5. It is a hard fact that there is a rising number of Immigration Marriage Frauds happening not just in the UK but internationally. It takes two forms 1) Bigamy 2) Romance Scams. Bigamy is extremely difficult to prove when the paperwork lies in countries such as Africa. Many victims of these frauds lose so much in the Divorce including their houses. A pre-nup would make it clear at the outset that ones assets are not for the taking…after all if you want them to have your house write a will!

  6. Ladies, if your man makes more than you, do NOT get married with a pre-nup and then have children. You will lose out on this deal. It will be your body, your sick days, your personal time from work, your career set backs ..and then he’ll leave you for a younger woman and come out way ahead of you. Please do NOT do it. Just think: he wouldn’t be insisting on a pre-nup so hard if he didn’t lack the faith in you, your relationship and his own ability to be faithful to you once you get old. He knows himself even better than you do. If he’s telling you the marriage won’t last, believe him. If he’s telling you he wants to keep his assets and money after he’s done using you, believe him. he’s not lying. Take this warning. DO NOT SIGN!!! Run.

    • Sorry. I do not agree. Under French Law there is a very simple system that works across every Country they colonised called ‘Separation de Bains’. This means that what you brought to the marriage remains your own at time of divorce and only assets after are looked at for financial settlement. This is sensible and tried and tested. This form on pre nup allows more people to marry because they understand the score. It avoids lengthy and expensive court battles. A spouse should not be a meal ticket for life. We at Immigration Marriage Fraud UK deal with hundreds of cases where men and women who come from foreign countries are marrying wealthier UK nationals to obtain Citizenship and for financial gain. Men and women losing their houses often the victims find out that they are already married. What you may not know is that when a Muslim marries a non Muslim or when two Muslims marry the UK law on Bigamy is not applied. Therefore Whiston v Whiston cannot be used. Muslim women in their thousands are being caught out and left with nothing when they find out that their husbands without any consent have married others in Nikak ceremonies, Non Muslims marrying a Foreign National are having to pay ancillary relief to their partners. Read the Mail on Sunday this week and watch 3 programs on the issue later this Spring.

      Kim Sow – 01304447912. A victim who found out her husband had 4 or 5 concurrent wives who is about to lose her house.

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