Partner Article

Why pre-nups don’t always strike the right chord

By Norman Taylor, consultant

The story of Kimberley Walsh taking advice to draw up a pre-nup shortly before her recent Barbados wedding to Justin Scott has been ringing from the media rafters - catapulting the topic back into the spotlight.

Kimberley’s last minute dash to her solicitors was said to be sparked by the regrets of her long-standing friend Cheryl Fernandez-Versini, who failed to draw up a contract ahead of marrying entrepreneur Jean Bernard in July 2014, after a whirlwind romance.

However, even if Kimberley went ahead with such an agreement, it may not have the desired effect of influencing a judge’s ruling should the couple - who have been together 11 years and have an 18 month-old son - split and fail to agree a division of assets or child arrangements.

The reasons behind this are twofold. Firstly, while pre-nups are increasingly being taken into account by the courts in the event of a dispute, they are still not legally binding. They also carry much more weight if they are set in place well in advance of a wedding - rushing into one just days before the wedding ceremony may render it irrelevant.

Secondly, there are substantial differences between the two ladies’ circumstances, which make it hard to compare like with like. Cheryl and her soon-to-be-ex have built up assets separately (they have known each other less than two years and he is reputed to be wealthy in his own right). As the vast majority of her wealth was likely amassed before meeting her husband - and without his input - it would have been sensible to enter into a pre-nup a reasonable time before marrying in order to protect it.

By contrast, Kimberley’s 11-year relationship has covered most of her adult life and her entire career to date. A late pre-nup days before her marriage will, in our experience, have less influence. Her husband could argue that he has supported her throughout her rise to pop stardom and subsequent success as an actress and television presenter. Eleven years is considered to be quite a long relationship these days, and once married, any pre-marriage cohabitation is treated as being part of the duration of marriage itself.

The difficulties encountered with pre-nup agreements are that judges remain concerned when the agreements are signed under pressure. There is little time to reflect or be confident about the terms and judges may ignore or vary them.

To avoid these risks, set up the agreement in good time, make sure there is full financial disclosure- and get good legal advice.

This was posted in Bdaily's Members' News section by Jones Myers LLP .