Prenuptial Agreements in the Age of Transparency

Are Prenups the New Terms and Conditions for the Modern Marriage?

Every day we click to accept the terms and conditions of legally binding contracts without ever really reading or understanding how they could benefit or disadvantage us. The consequences of this are only just being realised. We need only look to the public outrage rallied at the likes of Facebook over the Cambridge Analytica data scandal to conclude that there is a growing discontent amongst the public with regard to a lack of transparency. This is fueling a broader cultural intolerance for any agreements that are deliberately and prohibitively convoluted, lengthy or designed to mislead. We can reasonably wonder then, in the age of transparency, are prenuptial agreements the answer to two-way terms and conditions for the modern marriage? We believe so!

Shedding the Stereotype

In recent years, in many other jurisdictions the use of prenuptial agreements has been very uncontroversial, while domestically their use has been somewhat unfairly stigmatised. Fortunately this thought process has changed and the inclusion of a prenuptial agreement as part of routine preparations in the run up to a wedding is becoming more commonplace. This shift in culture means that prenuptial agreements are finding their place within both the legal and the public sphere. No longer are they seen as pessimistic or mercenary documents, but rather, a wise investment of thought that could spare a couple unnecessary costs and anguish should they decide to part at a later stage.

Who Really Benefits?

Often it is assumed that a prenuptial agreement will only benefit the financially stronger party; this simply is not the case. The transparency that can be achieved for both sides cannot be understated and the associated asset protection or ‘ring fencing’ of property can be appropriate in many different circumstances. Perhaps one party wishes to protect assets for children from a previous relationship, in this instance that party would not necessarily have to be the more economically capable. This is just one example of how the correct drafting of an agreement can bring issues to light that may not have been considered until the marriage entered a more tumultuous period. Unfortunately in that scenario, while there are still options available (postnuptial agreements for example), often many people find their partner less receptive or reasonable than they may have been prior to the wedding. This of course is not uncommon and in many ways completely understandable, but emotional decision making at a time of crisis can be avoided with prudent planning ahead of the marriage. Ultimately, couples who value transparency and see this approach as an extension of the trust between them, can create a clear and precise plan for the future with no illusions on either side. It would be hard to argue that this wasn’t the best basis for any marriage!

What if You Change your Mind or Circumstances?

In many ways once a legitimate prenuptial agreement has been made it behaves in a similar fashion to any other contract in law. If the circumstances radically change then there is nothing preventing you from varying the terms of the agreement, of course with consent from both parties. Indeed a mechanism for periodic reviews within the terms of the agreement would almost certainly be prudent. It is a common misconception that once an agreement is signed there is nothing more that can be done should you change your mind. Fortunately one of the key elements to creating an enforceable agreement is independent legal advice and any of these mistaken beliefs can be addressed in consultation with your solicitor. In this new culture of pragmatism it is freely accepted that honest disclosure to your partner is expected regardless of marital status – and with that, the role of the prenuptial agreement looks set cement its place as the ‘norm’, adopted by the many rather than the few.

Take Action

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