Prenuptial agreements have been slow to catch on in Britain. But there are signs that they are becoming more appealing to both the happy couple and the legal fraternity, says Clare Dyer.
'I was stupid,' the American comedienne Roseanne Barr snapped when asked why she hadn't made her former husband, Tom Arnold, sign a prenuptial agreement. He got 'millions, millions, millions, millions, millions and millions - the pig'. Elizabeth Taylor and Larry Fortensky signed on the dotted line. So did Steven Spielberg and Kate Capshaw - though only after much-publicised haggles. In Sweden and France, such contracts are as common as snaps of the wedding party.
In Britain, however, prenuptial agreements have been slow to catch on.
'We have this dewy-eyed approach to love,' says David Hodson, a solicitor with the Family Law Consortium in London. But Britain has the highest divorce rate in Europe: more than one in three marriages won't stay the course. Why risk the trauma and expense of a lengthy and bitter divorce when it could all be sewn up in advance?
There's a hitch, alas. In Britain pre-marriage contracts are not currently enforceable in court. They are taken into account but only as one of a number of factors in deciding a financial share-out. Judges will only bear in mind pre-marital contracts if both sides have made 'full and frank' disclosure of their financial position. A second prerequisite is that both parties have had separate legal advice before signing. And the longer ago the agreement was signed, the less likely is a judge to be swayed by it. Hodson recommends reviewing a contract every five years and when the first child is born.
With this in mind, the Law Society's family law committee has recommended that prenuptial agreements based on independent legal advice and regular reviews should become legally binding. Divorce lawyers now believe the law is moving that way. The new no-fault divorce reforms, which squeezed through Parliament in June, will require couples to reach a financial settlement before the divorce can be granted - an easier task if they've worked it all out beforehand.
Lawyers report growing numbers of clients asking to have agreements drawn up. To aid the popularity of the agreements, the Solicitors Family Law Association has produced a 21-clause precedent from which clients can choose the terms they want in their agreement. Couples can agree, for example, to keep all the property they own when marrying safe from any claim by the other. Any property acquired during the marriage can be deemed to be owned jointly or by each in the shares in which they contributed.
A simple contract can cost as little as £250.
One motive for making a contract may be to try to exclude a shareholding in a family company from a divorce claim. Hodson drew up an agreement for a son of a well-known company, 'one of the leaders in its sector', when he decided to get married. 'It was a family company - it had been in the family for three generations. The shares had always been passed down through the family. They wanted to know that the wife would not try to get shares or force a sale of shares on the open market, which strictly speaking she could do.'
Diana Parker, a partner in the up-market London divorce firm Withers, says clients seeking prenuptial agreements usually fall into two groups: well-heeled couples who have been divorced before, where each wants to preserve existing assets for their children; and those where a richer, older man is planning to marry a comparatively poor, usually younger woman. There are obvious sensitivities in setting up such arrangements. In one case, where Parker was acting for the chief executive of 'a well-known household name company' marrying a younger, poorer woman, contractual negotiations put so much stress on the relationship that the agreement was abandoned. 'The difficulty is trying to work out what the terms should be - for instance, what sort of house she should have if they split up in the future,' she says.
American couples often include clauses about how much 'quality time' they spend together and how often they have sex, but Richard Sax of London law firm Manches & Co advises that such frivolities are likely to get up English judges' noses. 'My advice is to leave those matters out. I think the court would look askance at the "John and Jane shall consort together from 2 to 3pm on Sunday afternoon" type of thing'.
Sax denies that lawyers want to promote premarital contracts as money-making exercises. 'Lawyers would make much more money from sorting out the divorce. I certainly think more people should have pre-marriage contracts and I think it would help them to have better marriages. I'm amazed at people who haven't thought out what the framework of their marriage is.' But as Roseanne Barr found to her cost, love can be blind.