​No Royal Pre-Nup, but should you?

​No Royal Pre-Nup, but should you?

The royal marriage of Prince Harry and Meghan Markle has drawn attention to the benefits of marriage as opposed to cohabitation but also the potential pitfalls. Looking at Prince Harry's family shows that his father, his uncle and his aunt have been divorced and his marriage to Meghan was of course her second. In congratulating the royal couple and expecting that to be a "forever" relationship it would be easy to forget the reality that nearly one in two marriages now end in divorce and Meghan herself probably thought when she got married the first time round that that was "forever".

Reports claim they did not have a Pre-Nuptial Agreement ahead of their May wedding, while it may be common place for celebrities to consider this as good forward planning, when it comes to the royal family pre-nups are "simply not done". The reality might be that Meghan herself has more financial assets than Prince Harry. For many Pre-Nuptial Agreements are seen as unromantic. Marriage though remains a gamble or more appropriately divorce after marriage is the gamble! Whilst the Government is pushing forward with a scheme to allow "online divorce" that does not cover dealing with finances which remain with the discretion ultimately of a Judge if agreement cannot be reached. The legislation from which that power derives and the factors taken into account start from the Matrimonial Causes Act that was passed as long ago as 1973. This is a very different world now than in 1973 and although the Matrimonial Causes Act has changed over the years it is still fundamentally that same Act but with the interpretation of the senior Courts and various landmark decisions giving guidance. It still can be something of a lottery!

There has been some recent criticism of approaching the negotiation of a divorce settlement as a "negotiation" and the concern that someone that is more used to a business environment will be in a much better and stronger position to be able to reach a settlement even if that might not be fair on the other party. There is a balance to be drawn between using those business skills and an overly aggressive or adversarial approach. Pre-Nuptial Agreements are the ultimate "business" approach towards marriage in that they can be used to safeguard assets in advance and such things as businesses that could otherwise be in jeopardy should the key decision makers within a business separate and divorce. Jobs and lives of many people can be put at risk if the emotional fallout of a divorce then affects a family business.

Any inequality in negotiating skills and business acumen is offset by the Solicitors involved and the process. For example collaborative law can often be a much better way to ensure that individuals going through a divorce not only have control of the situation but there is a "level playing field" in terms of experience and expertise in reaching agreement on what would be a fair settlement. Most importantly with collaborative law that settlement can be more creative than one determined by a Court. Reaching an agreement (before a marriage by way of a Pre-Nuptial Agreement or afterwards) is still far more sensible and advisable for anyone that wishes to enter the "lottery of marriage". Whilst everyone enters a marriage not expecting to have a divorce the royal family and the recent royal marriage shows that even royalty are not exempt from the reality of one in two marriages now ending in divorce.

Commentary by Neale Grearson, Head of Family Department.

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*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.