Are prenuptial agreements a good idea?

The much reported feud between Heather Mills and Paul McCartney since their marriage broke up, has been in the news again over the last week. The Guardian reported on Saturday that in a marathon eight hour mediation session the couple failed to agree on a settlement. The main reason for the talks breaking down seems to be Ms Mills’s refusal to accept a confidentiality clause which would stop Ms Mills talking about their four year marriage or the financial settlement she receives. Although it’s reported that a provisional court date has been set for February, it seems they are still keen to reach an arrangement out of court, and see court as a last resort.

Unconfirmed reports have said Ms Mills would like a settlement figure of £50 million and that Sir Paul has offered less, however with the cost of high profile divorces increasing, there has been much media speculation suggesting she could awarded as much as £200million of Sir Paul’s £800million fortune. Princess Diana’s divorce settlement of £17million, 10 years ago seems like a mere pittance compared to today’s climate; with divorce settlements such as £48million, being paid out by John Charman (Insurance tycoon) last year, and £100million being paid out by Peter Harrison (Computer tycoon) in 2003. It may seem more important than ever, to embark on a prenuptial agreement. This article will discuss the pros and cons of drawing up a prenuptial agreement prior to getting married, and whether it would have actually made the divorce process for Sir Paul and Ms Mills easier.

Although not only for couples where there is financial inequality and extreme wealth involved, many lawyers are now advising wealthy clients to get a prenuptial agreement. A prenuptial may not only protect the financial assets of their clients, but also protect financial well being of children in a previous marriage. It sets financial expectations on the table, and eliminates conflicts over finances in the event of divorce. A prenuptial may prevent a messy bitter divorce, and possibly avoid upsetting any children involved.

Many Celebrities are embarking on prenuptial agreements. Nicole Kidman and Tom Cruise did not have a prenuptial agreement before their marriage, which led to a bitter feud developing until they finally reached a settlement. Second time around Nicole Kidman drew up a prenuptial with her husband Keith Urban, which allows her to divorce him for free if he returns to drink and drugs. Her ex husband, Tom Cruise, also insisted on a prenuptial agreement before his marriage to Katie Holmes.

One case against prenuptial agreements is that they are unromantic and denote mistrust. They may suggest the partner asking for one is not as committed to the marriage. Katie Holmes, in response to Tom’s insistence to set up a prenuptial, was reported to have said she was head over heals in love with him and very upset that their love may not be equal. However because of the size of Tom’s fortune she felt she had no choice but to go along with it. After much negotiation between Katie’s solicitor father and Tom’s Lawyers, a prenuptial agreement was finally agreed upon. In Ms Mill’s case she claims she offered to sign a prenuptial agreement before her marriage to Sir Paul, however he turned it down as he felt it was unromantic.

Arlene Dubin, a New York lawyer, advises lovers to talk about a prenuptial early on in a relationship, and suggests it’s a myth that they denote a lack of love and trust. Whether prenuptial agreements ease the divorce proceedings, is however a hotly contested debate. Peter Wolf of Berg Legal says it is wrong for people to believe a prenuptial agreement will give them extra protection. In order for prenuptials to be considered in the break up of a marriage, they need to be fair to both parties, who should both seek legal advice, and also need to be based on a full and honest disclosure of partner’s assets.

Although prenuptial agreements have had an influence in divorce proceedings, they are not actually legally binding in this country. If there appears to be any trickery in the agreement, such as one partner saying they did not enter into an agreement voluntarily or under duress, then the agreement is worthless.

Jeremy Levision is one of the so called ‘magic circle’ of lawyers who represent wealthy clients in divorce proceedings. He has acted for Mandy Smith in her divorce with Bill Wyman in 1992, and Chris Tarrant’s estranged wife, among others. He is one of the many lawyers who are advising clients, where extreme wealth or inequality of wealth is involved, that it’s safer not to get married. If clients still want to go ahead with marriage, he will help with a prenuptial agreement, but suggests they still need to keep their fingers crossed.

Mark Harper another of the ‘magic circle’ is also in agreement with Mr Levision and advises clients who want a prenuptial agreement to not get married. It is becoming increasingly less likely in cases where extreme wealth is involved, to settle out of court, and whether the courts pay attention to prenuptial agreements, really does depend on the individual cases. They do not actually have to adhere to them at all.

There are certainly no clear answers as to whether it is worth drawing up a prenuptial agreement. Having a prenuptial agreement may have helped the McCartney/Mills divorce settlement run more smoothly. Clear expectations agreed upon at the onset of the marriage, may have helped limit the feud between them after their split. However they still may not be worth the paper they are written on. There is still no guarantee they wouldn’t have still disagreed about settlements, and in the case of that happening any prenuptial agreement would have been quite likely to be dismissed altogether.

With more extreme sums of money involved in divorce proceedings, more cases going to court, the appointment of prestigious lawyers, as well as the media interest divorces between celebrities invokes, maybe the best advice is not to get married at all.