If you can’t have a conversation about what would happen between you and your partner in the worst of times, should you really be getting married in the best of times?
That’s the overarching advice Ayesha Vardag – one of Britain’s leading divorce lawyers who successfully fought for UK courts to recognise prenuptial agreements – has for future-weds.
Thanks to her landmark Supreme Court case, Radmacher v Granatino 2010, couples can avoid the costly process of fighting each other via a judge on a number of separate issues if, as happens in 42% of marriages, their matrimony comes to an unexpected end.
"Every time prenups were considered previously, judges just thought that there was some poor woman being made to give away her rights in exchange for being married," Vardag tells Refinery29.
"A client of mine felt that this was unjust. They were valid in the rest of the world and meant that two people could make a decision about what they would do in the worst of times, rather than have to go through the courts.
"I said this was wrong and anachronistic, this idea that women were desperate to marry and would agree to anything. The judge’s views came from a patriarchal, paternalistic approach to women.
"Agreeing to equal responsibility and accountability in a prenup adds to the protection of women, it does not undermine women."
From parenting arrangements to the ring-fencing of assets, having a signed contract in place before walking down the aisle can give partners a sense of security and reduce the risk of acrimonious, not to mention expensive, litigation.
A quick search of divorce law websites appears to show an increase in the number of couples getting prenups in the UK, although there is no solid statistical evidence to back up their claims. But if prenups are really as great as they sound, why aren’t more of us protecting ourselves before we tie the knot? And why do they have such a bad rep?
One of the main reasons Vardag cites is that couples simply do not consider the idea a romantic one. Partners, she says, need to get realistic or risk paying the price further down the line.
"Married life is not a Mills and Boon novel, and no one ever seems to talk about that. Marriages break up because people don’t plan how they are going to deal with their finances, with children and so on. It is much better to have these conversations ahead of time rather than to do it blind.
"Otherwise, if the worst does happen, you could find yourself mired in years of horrible litigation, and everything you have worked for has gone. If you can’t do it, if you can’t have those conversations, you shouldn’t be getting married."
Yvette, 36, works for a well-known fashion brand. She was "shocked" when her husband floated the idea of a prenup ahead of their marriage in 2011.
"He earned a great deal more than me, and he had a product design business that he was one third of a partner for. It was worth around £2 million.
"He suggested it, and I was like, 'Why do you want one?' He explained it was because of the business, not because he thought I was going to take him to the cleaners.
"I was shocked, and I was a bit offended, but when he explained to me it was to protect his business, I said, 'I understand, I don’t know what you think I’m going to do to you, but fine.'
"So we got the prenup, he paid for the lawyers, they drew it up, I read it through and had a one-to-one with a lawyer to make sure I was 100% sure of what I was signing.
"There was nothing weird in there and it was all very standard. You leave with what you come into the relationship with. Everything we bought together was 50-50 split."
However, having bought a flat together, they split suddenly in 2016, living apart and estranged for over a year before Yvette got an unexpected letter through the door.
"He initially got some random lawyer to issue divorce papers. He didn’t even tell me, the papers just turned up at my house."
Yvette says the process of divorce is "scary" and that she initially found it difficult to get support for the stress she was going through.
"I was seeing a mental health therapist at the time on the NHS and she gave me some numbers to call," she continues.
I didn’t ever think things would turn out like this. The prenup definitely has proved to be beneficial to me, for sure.
"Many of them had limited hours and didn’t answer the phone most of the time. I was trying to do research myself.
"Quite randomly, I was speaking to a friend about it on the train and a trainee solicitor gave me her card and asked me to email her. She gave me a 'how to do your own divorce' pack, which was helpful.
"You can call a lawyer and ask one question for free, too," she advises. "All these forms I had to fill out, if I said yes or no [I didn't know] what would happen. So I phoned lots of different lawyers. It was difficult."
As of February, Yvette is a happily divorced woman. However, she later discovered that having a prenup may not prevent her from having to go through the courts altogether. A partner may still contest the terms under which the prenup was agreed – but they must prove to a judge why this should be the case, and shoulder the costs for doing so.
"Due to what it says in the prenup, I’m set to get half the flat, but he is set to contest that. He’s been living in it, he’s been paying the mortgage and he put down the deposit, so I’m pretty sure that despite what it says we’re going to still have to take it through the courts."
Even so, she’s still likely to see considerable benefits from the agreement.
"When I was signing it I felt like it was protecting him. Now it is in my favour, because I have nothing to lose – and he has everything to lose.
"It was not an amicable split and we are not speaking. I didn’t ever think things would turn out like this. The prenup definitely has proved to be beneficial to me, for sure."
Newly engaged Thea, 24, was the one who suggested getting a prenup to her 26-year-old partner.
She had previously considered the contract one that only wealthy couples seek out, and assumed it would be expensive. However, having firsthand experience in her role as a communications executive at a divorce firm, she knew better than to pass up the opportunity to secure her future.
"I always think of what one lawyer at work tells me, and that is to 'fix the roof while the sun shines'.
"I suppose the attraction of a prenup for me is pragmatism rather than fighting in front of a judge. Seeing couples every day that are ending their marriages, I am hyper aware of things to avoid when I’m going through this process.
"To me, getting a prenup is more likely to make the marriage last, as it shows that you are sharing the same expectations. What has made this relationship work so far is being able to have difficult conversations."
She admitted that her partner, who works for a US startup company, was "a little surprised" when she brought the prenup to him ahead of his proposal to her, but that he quickly got "on board" after she explained that the idea was pragmatic, rather than one based on suspicions about his intentions.
"There is an ugly stigma that surrounds prenups," Thea continues. "This idea that it means that your partner’s family has money, that it is protection against gold-diggers. I’m getting married with some misgivings about it as an institution, but with total optimism.
"To me, it is a woman’s prerogative to get a prenup. There is a glass ceiling for us. There’s the prohibitive costs of childcare, and the rights and responsibilities you’re expected to uphold regardless of cost and regardless of whether you divorce or not.
"I have friends who think I’m an absolute loser for wanting to get married. And if you are getting married as a modern woman, you have to be clear from the outset what you are getting out of it.
"For example, we’re more likely to compromise on our careers for the family, and to raise children."
There are a number of different prenups a couple can opt for, depending on how complicated their assets are, and how much they are willing to pay. In any case, Vardag says, they are "a lot cheaper than a divorce" – the average cost of which is £14,561 – with prenups ranging from £300 to £2,000 for a standard contract.
In prenup etiquette, the partner who is asking for the prenup usually pays for both lawyers – each partner should be independently advised on the matter.
In any case, if the average spend on a wedding is £27,161, what’s an extra grand or so of financial insurance?
Thea is planning to draw up a fairly straightforward prenup.
"We’ll split the money down the middle and share parenting duties of any children we have. If we move around a lot, we’ll sign something to make sure that neither of us can go overseas to live with our children.
"He has plans to start his own business on the horizon, and at the moment, we’re financially matched. We have grand visions of us both working flexibly, but we’ll see how that goes. We know we both want children, but not yet."
Would she recommend getting a prenup to anyone else?
"My closest friends are getting married before we do, and I’m the maid of honour," she concludes.
"I’m going to have a good chat with her about considering a prenup, but I suspect she’ll laugh at me because she’s an actress marrying an actress and they don’t think they have any assets to sort out. But we’ll see what they say once I’ve finished with them!"
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