Continuing our mini-series on the lifecycle of the prenup, what are the things that get in the way of making a decision about the prenup?

1.       A major topic is what happens if you have a connection to another jurisdiction. An English prenup will only provide for what should happen if the marriage breaks down in England. However, people often relocate or belong to international families so they might be based across more than one country. It’s important therefore to consider where and when a relocation might happen or what other connections there are with other jurisdictions which might come into play. It might be necessary to take advice from a specialist family lawyer in another jurisdiction to make sure the prenup “works” should the marriage breakdown somewhere else.

2.       Life doesn’t move in straight lines and there are other issues to consider. What happens if you have kids? The prenup should definitely provide for what happens if there are children. It’s not possible to exclude claims on behalf of a child and so often the prenup will say the provision for the child will be determined at the conclusion of the marriage depending on their needs. Usually we advise clients to be generous in relation to provision for the children and it may also be possible to for example set up a structure for any future children’s education costs.

3.       A real hot topic in family law at the moment is the question of review clauses. The firm recently acted in the case of AH v DH in which there was a review clause which wasn’t followed during the marriage. The judge was critical of the parties for not conducting a review, and so these have now become a little bit of a hostage to fortune. There is an argument for not putting a review clause in at all. However, that may affect the view the court takes of the longevity of any arrangements and so a review is usually a good idea but it will be necessary to at least attempt to review the agreement. The question is then when should there be a review? Any kind of relocation, the birth of children or a particular anniversary of the marriage are usually the right options. The parties might also consider whether or not a significant inheritance might affect the terms of the prenuptial agreement.

4.       What about maintenance? English law says that the court has a duty to consider a clean break at the end of the marriage. This means no ongoing spousal maintenance support. But how do you work out what the maintenance should be in a prenup? Sometimes at the start of the marriage both parties are both working on their careers and they might even be earning at the same level. However, if they have children or something happens in the marriage that means one of them is unable to work there will usually be provision in the agreement which deals with the possibility of maintenance . This could be limited in duration, or just to reasonable needs (deliberately excluding claims that are set out in some judgments about compensation for an economic disadvantage suffered by one party). Usually the award will be expressed to be subject to a consideration of both parties’ earning capacity and the resources they have at their disposal to meet their own income needs. Often prenuptial agreements will also include an arbitration clause so that the quantum and duration of any maintenance and whether it is capitalised should be determined within a private court process.

5.       Finally, confidentiality. It will be necessary for both parties to make disclosure of their resources at the time of the prenup for it to be effective. Therefore most prenups will include a confidentiality clause which prohibits talking about the content of the prenup or either party’s assets. This can be of particular importance to parties in the public eye where there is significant wealth. Parties entering into an agreement might also consider consulting a privacy lawyer about a non-disclosure agreement although there’s some thought that the efficacy of such agreements may be questionable.

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If you require any advice on prenuptial agreements, please contact the team at Burgess Mee on mail@burgessmee.com.

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