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The evolution of the pre-nup

The prenuptial agreement (or ‘prenup’) has had a fairly controversial time of it in the UK. Although they are not currently strictly enforceable or legally binding there’s now a rebuttable presumption that a prenup will be upheld in the UK courts unless its terms are considered to be unfair. As a result, the prenup is becoming an increasingly more acceptable way of protecting wealth, particularly where a marriage or civil partnership is being entered into where there is an imbalance in the assets of the two parties to the union.

One of the main objections to signing a prenup before the marriage or civil partnership has even gotten under way has traditionally been the idea that this somehow dooms the relationship.

Traditionally, many people have refused a prenup on the basis that this is a cold and calculating way to enter into the start of a commitment and that this can have the effect of focusing both parties’ minds on the idea that the relationship might end in a split sooner rather than later.

However, research recently carried out by YouGov indicates that attitudes are changing and most Brits now don’t believe that having a prenup in place increases the chances of a marriage ending in divorce. 58% of those who took part in the research said they didn’t believe it would affect the success of the relationship and only 18% said that having certain knowledge of what would happen financially when a marriage ended would increase the likelihood of a divorce occurring.

Prenups have been legally binding in countries like America for years so the UK is considerably lagging behind in terms of making these agreements enforceable. However, this research would indicate that we are beginning to follow suit in terms of our attitudes to the necessity of setting out in writing at the start of a commitment like a marriage the way that the practical matters are to be deal with if it should come to an end. Almost half of Brits now think that a prenup is a good idea before entering into a marriage commitment – not as high as the statistics in the US but this could simply reflect the fact that prenups are not yet legally binding here.

However, even as the UK begins to accept the idea of the prenup and they become more common, the concept is evolving. A new trend for these types of agreements is the inclusion of a social media clause, which is designed to protect the parties to the agreement from being damaged after a split by the publishing on social media of private messages, photos or videos.

This highlights how much of a central role social media has come to play in almost all aspects of our lives and also how the prenup can be designed to protect against the often very emotional, sometimes irrational responses that we have during such traumatic times. If the clause is breached then the penalty is financial – couples in America could pay up to $50,000, which can have a significant deterrent effect.

For more advice on prenups – or any other family law issues – feel free to contact a member of the Stephensons team