The concept of the prenuptial agreement is nothing new. Egyptologists discovered an ancient scroll dating back 2480 years that turned out to be detailed pre-nup assuring the wife’s rights in case the husband decided to seek greener pastures. The lucky girl was assured an annuity of 1.2 pieces of silver and 36 bags of grain annually in case Hathor (the Egyptian goddess of love) did not smile upon the union. In Judaism, the religious marriage contract, or Ketubah, has clearly defined the wife’s rights in case of divorce for well over 200 years. Islam has a similar mechanism known variously as Katb el-Kitab, Aqd Nikah, Aqd Qiran or Aqd Zawaj that has been utilised for centuries.
Given the decidedly ancient pedigree, it is surprising that pre-nups have only entered the public consciousness of Western societies in the past few decades. The value of pre-nups is a hotly contested issue. For any couple evaluating whether a prenup is right for them, it is worth considering the various pros and cons:
- Saves Time & Money: After weeks searching for family lawyers in Melbourne, Australia, a friend of mine was unable to find anyone decent for under $450/hour. Factor in time spent in conference, corresponding with opposing counsel, preparing documents, arguing in court, etc., and you can see how quickly you will be up for tens of hundreds of thousands of dollars in fees. Most of this can be avoided by setting out the framework ahead of time.
- Aligning Expectations: We all come from different backgrounds and upbringings that affect our attitudes towards money, financial security, asset protection, child-rearing and innumerable other matters. These issues can become potential flash points in a marriage down the track, so discussing them in advance can help determine whether you and your partner are, in fact, compatible.
- Reduces Conflict: Given that you have everything planned out in advance, in unfortunate cases where the marriage breaks down, there is little or nothing left to argue over, saving you stress and conflict that can negatively affect you and your future children’s lives.
- Protects Assets: In cases where the couple come from disparate socio-economic strata, the wealthier family may wish to protect their assets should the relationship end and things turn nasty. A prenup can help to set the family’s mind at ease that their child’s partner is entering the relationship for love and not for money – frequently a cause of tension and mistrust in such scenarios.
- Fairer Outcomes: You are far more likely to negotiate a fairer, more equitable arrangement regarding assets and children when you still love and care about each other, as opposed to in the heat of the bitterness and conflict of divorce.
- Seeds of Mistrust: Working out what happens if your relationship breaks down is hardly the romantic discussion that soon-to-be-newlyweds want to be having. There is no shortage of stories of couples that broke up before the big day over disagreements surrounding either the necessity for or the content of a prenuptial agreement.
- Life Changes: Couples embarking on marriage never know what their future together will bring. Career changes, children, illness, disability and countless other factors can drastically change one or both people’s outlook, rendering the prenup irrelevant or inappropriate some years down the track. Many family lawyers, therefore, strongly recommend including a sunset clause in the agreement.
- Increased Likelihood of Divorce: Statistics show that relationships in which the couple has signed a prenup are significantly more likely to end in divorce or separation. Perhaps it is because of the initial mistrust established, or possibly because prenups are more common in second and subsequent marriages which are statistically more likely to fail anyway.
- Not necessarily binding: While you may feel protected, in many countries, prenups are subject to judicial scrutiny. If one of the couple decides to take the matter to court and challenge the validity of the agreement, a judge may decide to throw it out, leaving the couple back at square one.