​What Should be in a Pre-Nuptial Agreement?

​What Should be in a Pre-Nuptial Agreement?

What Should be in a Pre-Nuptial (Pre-Nup) Agreement?

There has been a lot of media coverage and publicity for the alleged additional $5 million that Katie Holmes received as part of her divorce settlement from her ex-husband Tom Cruise because she did not publicly have a new relationship and kept very quiet her friendship with Jamie Foxx. What it has also done is to put the spotlight on some of the less standard provisions that can be put into a Pre-Nuptial Agreement.

Pre-Nups are becoming more popular in this country and whilst we are unlikely ever to get to the level that they are used in America the Courts in this country are now willing to take them into account when fair and if certain common sense steps are taken to give them weight and authority.

Pre-Nuptial Agreements do not provide for what happens when one of the couple die but if they have a divorce. Of course those entering into a marriage will never think that a divorce will happen but the reality is now that nearly one in two marriages do end in divorce. The figures for second and third marriages are even higher. Where businesses are concerned or one of the couple has inherited substantial monies previously a commercial "hat" can often be used although the danger is that the romance of a marriage can mean that people are blind to possible long-term repercussions of not thinking about such things as a Pre-Nuptial Agreement.

The contents of a Pre-Nuptial Agreement are determined by the couple. The more bizarre the contents the greater the risk that a Judge might dismiss this as being frivolous or just plain ridiculous but the trend in America is to include aspects that previously would not even have been considered in this country. We might however see clauses such as the following that have been used by celebrities in America.

Charlie Sheen and his wife are reported to have been so paranoid about one of them committing adultery that they signed a Pre-Nup that awarded each a further $4 million if the other one cheated on them.

Tom Cruise and Katie Holmes' Pre-Nup apparently included provision that Katie collected $3 million for each year the couple stayed married. Valuing per annum the length of a marriage was also allegedly used by Michael Douglas and Catherine Zeta Jones where Catherine is entitled to $2.8 million per year as long as the marriage remains intact. Catherine was quoted as saying 'I think Pre-Nups are brilliant. I get taken care of very well'.

Without wanting to value or downgrade particular celebrities Nicole Kidman's Pre-Nup only provided for her husband to have $640,000 for each year that he is with her. However hers had an additional clause that if her husband used illegal drugs he would not receive anything and at the time of her marriage Nicole's fortune was estimated at around $150 million.

Whether it be for celebrities or not the trend in America appears to be towards including such things as what is to happen to pets. There are even reports as to American Pre-Nups dealing with "custody" of gardeners, babysitters and pool men.

A final salutary lesson for couples getting married and indeed Solicitors is the reported case of Roseanne Barr. Allegedly before she got married in 1990 she fired her lawyer for suggesting that she should sign a Pre-Nup. The couple divorced four years later and her husband received $50 million! If one of a couple getting married will not sign a Pre-Nup an option is that they do not get married. The discussion between the couple about a Pre-Nup is difficult enough but the one between the lawyer and his client advising that he or she should not get married is an even more difficult one fraught with the risk of being sacked!

Commentary by Neale Grearson, Head of Family Department.

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