Prenuptial Agreements

Baroness Featherstone Excerpts

Thursday 27th February 2025 Lords Chamber

[Baroness Featherstone (LD)]

My Lords, what a very interesting debate. I congratulate the noble Baroness, Lady Deech, on securing it. I have no legal training. I am not sure if I am the only person speaking in this debate who is not a lawyer or a judge of some sort, but I am speaking here on human grounds and common sense, and as a bitter divorcee.

It is a bit sad—I agree with the right reverend Prelate—to think that marriage, which is, or was, a lifetime commitment to another until death do them part, has now to enable a division of chattels, should that marriage end in divorce, even before entering the said marriage, but we are where we are. In 2023, there were 76,089 divorces in the UK, which is about 38% of marriages ending in divorce. This is down from 113,505 divorces in 2021, when 46% of marriages ended in divorce. So we should welcome anything which makes this challenging process better, safer, fairer, easier and less traumatic.

Even though, currently, the courts almost always uphold prenups so long as they are fair, who knows what outcome you will get? Based on the rate of divorce and the contributions from noble Lords who have spoken in the debate today, it seems to me that the time has come for the legitimate status of prenups to be enacted. There are clear pros, as identified by many of your Lordships who have spoken so far, but I am concerned that the negatives have not been erased. What happens when a prenup—which now will have the rule of law on its side—is unfairly drawn but is now a legal contract agreed to by both parties? The noble Baroness referred to that. How will we know the status of the individual agreeing or signing, whether they were coerced, or whether they knew the consequence?

I am particularly concerned about women because, in general, it is still women who earn less, even if they work full-time; it is still women who give up work for the early years after having a baby; it is still women who lose their place in promotions due to absence; and it is still women who are not employed, despite employers theoretically not being allowed to ask a young woman if she intends to have children.

On the other hand, prenups do offer financial protection and ensure that a woman’s personal assets from inheritance or business ownership of investments remain protected in divorce. They can shield a woman from debt, including her husband’s debt, after divorce. They can clarify how finances will be handled in the marriage, and they can support career sacrifices where the woman gives up work to look after the children while the husband furthers his career. Legal battles can be reduced. I am definitely a bit “on the one hand, on the other hand”, but I do come to a conclusion in favour of prenups being legalised.

A fair prenup that takes everything into consideration might be a very good thing, but my concern is even more agitated by the formation of the prenup itself. They may be poorly negotiated, particularly if one partner is wealthy or more powerful. Some prenups waive or limit alimony, which is problematic when a woman has sacrificed her career for marriage. The current protection under default marital laws might protect her better than a prenup, which might restrict her rights. She might be pressurised into signing a prenup—again, if the partner is wealthy or legally savvy, as are many noble Lords who have spoken today. Women would have to be able to have independent legal representation and to afford it, and that might be a challenge as well.

Therefore, if prenups are to become legal, I would want a number of safeguards against those negatives, because it appeared to me from my research for this debate that a prenup may favour whoever negotiates it better or who can afford the better legal adviser. Of course, the key to the success of this is to have strong legal representation and not sign anything under pressure. In the Radmacher v Granatino case, which has been raised by many noble Lords in the House, and with which I am now familiar, the prenup was actually upheld, but it set the precedent for what courts consider fair or unfair.

Then there are the costs: the cost of obtaining legal advice for a prenuptial agreement in the UK obviously varies, based on the complexity of the assets involved, the reputation and location of the solicitor, and the specific needs of the couple.

For straightforward cases with minimal assets, there may be fixed fees starting from £500. Agreements of moderate complexity—those involving more detailed financial arrangements—may cost between £2,000 and £4,000. For high-complexity cases—those with intricate assets, business interests or international considerations—costs can start at £5,000, without a ceiling.

Then there is asset complexity; the more complex the financial situation, the more time and expertise will be required to draft the agreement. In my experience —forgive me for saying this—lawyers always find extra things to charge for. The other issues are legal representation, as both parties need independent legal advice, which doubles the costs; negotiation time, as extended negotiations or revisions can increase fees; and geographical location, as solicitor fees vary depending on where they are in the UK.

Thankfully, some platforms are coming along that offer prenuptial agreement services at a fixed fee of £1,500—the total for both parties—aiming to make it more affordable and accessible. Each member of the couple will have to consult with a qualified family law solicitor to obtain a precise quote tailored to specific circumstances. Costs are significant, but, obviously, if this is to become legal, a well-drafted prenuptial agreement providing clarity could save considerable expenses, as has been mentioned, where divorces can cost a fortune.

As it stands, prenups that would or should be thrown out are those that leave one party in financial hardship; those that were signed under duress, without legal advice or with hidden or misrepresented finances; and those where time has changed the circumstances in which the prenup was agreed. We have not discussed many of the soft challenges. They include the potential for a prenup to undermine trust in a marriage; the sense that the couple feels that it is a bit like planning for a divorce—which, in this day and age, in my view is quite wise; the potential to create a power imbalance; the fact that it can be emotionally hurtful; and the idea that it might look and feel like an insurance policy. On the other hand, prenups can strengthen trust, encourage open communication, prevent future conflict, strengthen a relationship by setting out clear expectations, protect both partners fairly and show maturity and responsibility.

In summation, if prenups are to become legal entities, which I believe they should, they must have some indispensable clauses: on full financial disclosure; on independent legal advice; on no coercion or duress; on asset protection and separation; on debt liability; on spousal maintenance; on inheritance and family assets; and on future children. There should also be a sunset clause ensuring a revisiting of a prenup after a certain number of years. As has been said, they should also be signed at least 28 days before a wedding.

In conclusion, if a prenup is written one-sidedly, the wealthier or more powerful partner will benefit. However, if it is fair and negotiated well, both parties can benefit by protecting personal assets while ensuring financial fairness. That is what we and the Government must aim for. I am much persuaded by the arguments of the noble Baroness, Lady Deech. It is time to make prenups legal.