May 25, 2006
So those divorce cases got decided yesterday and now everyone is saying that you’d better get a pre-nup agreement. Well, yes:
ALL couples were advised last night to sign prenuptial agreements before getting married after a landmark ruling that gives wives much bigger divorce settlements.
OK. But the thing is, pre-nups have no validity in English law:
Emma Hatley, a partner at Withers, which advised Mrs Miller, said: “The ruling will serve as a deterrent to marriage. But prenuptial agreements will provide a good degree of protection — and I predict it will not be long before they are made binding. It’s not if, it’s when.”
"Not binding". Means they’re a statement of intent, a pretty piece of paper, but not actually a contract that can be enforced.
Failing that, he would urge prenuptial agreements. “My advice is: 1, don’t marry; 2, if you do make sure your other half is as wealthy as you are and 3, do a prenuptial agreement and keep your fingers crossed.”
Fingers crossed? That’s how valid they are.
The reason this all happens is that in English law marriage is a contract that over rides all others. You can’t exclude things from its effects.
Why we don’t move to the Scottish system, I’m not sure. What is owned before the marriage is inalienable, what is created during the marriage is owned 50/50 (with the usual arrangements for paying for the care of children etc). I’ve been told (or rather, have lurking around the back of my mind with no attribution) that this difference stemmed from the historical difference in the inheritance of land. Women could and did inherit substantial estates in Scotland so the law developed that such could not be broken up by fortune hunting smoothies.
Still, the message is clear. If you do have a substantial fortune and wish to marry, do so in Scotland. If it all goes wrong, what was solely yours will remain so. I’ve even been told (on this blog actually, the last time this subject came up) that simply moving your residence to Scotland before the divorce works: apparently some Royal Navy types have used their posting at Faslane to advantage in this manner.
Anyone else remember the case in the 80s? The Duke family was it (no, maybe Dart?)? An American billionaire moved the family to London or two years, then got rid of the wife? Under American law she would have got half the whole amount of dosh, under English she got enough to "maintain her lifestyle"? How things change, eh?
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"The reason this all happens is that in English law marriage is a contract that over rides all others. You can’t exclude things from its effects."
Quite so: in fact, as any fule kno, even your own Will is rendered invalid as a result of getting married: you have to rewrite, or at least, re-sign your will immediately afterwards, even if none of the provisions in it are changed one jot. Quite how a pre-nup can be made to be more binding than a will I'm not sure.
Posted by: The Pedant-General | May 25, 2006 9:26:39 AM
I think the courts will take pre-nuptials into account among other things.
But given marriage is a contract that says 'all that I have I share with you' 'until death do us part' then surely those who affirm it can't really complain?
Posted by: Matthew | May 25, 2006 9:29:38 AM
First up, a marriage is not a contract. Secondly, divorce is governed by the law of the place where one ends up having one's marital home, in the law of England and Scotland. Thus, the location of the wedding is immaterial.
Posted by: Marcin Tustin | May 25, 2006 10:25:34 AM
Out of interest, should I marry a Russian in England but make my home abroad, can I be taken to the cleaners in England at some later date, despite never having lived there.
Just askin'. Hypothetically, and all that.
Tim adds: I dunno but as above, think it depends upon where your residence is.
Posted by: Tim Newman | May 25, 2006 12:39:32 PM
Posted by: Squander Two | May 25, 2006 2:03:03 PM
The appropriate jurisdiction for the conduct of divorce proceedings in Scotland is the domicile of the pursuer at the date of commencement of proceedings. The Faslane boys use Dumbarton Sheriff Court if the missus has been having one too many nights out in Helensburgh with the local goatherders while they're on patrol.
I don't recall ever reading about the current Scots system being based on archaic law (archaic law is fascinating, once you get your head round half the cases being called 'Abbot of Ettrick -v- Alan the Shepherd' and the other half 'Alan the Shepherd - v- Abbot of Ettrick); it's governed by the Family Law (Scotland)Act 1985.
What is really interesting about Emma Hatley's comment is the forseeability of enforced pre-nups. I mean, few people have the capital to make a pre-nup worthwhile. Such a move, what would in effect be a grand assets haggle before the rings have been exchanged,would serve absolutely no practical function; unless, of course, they were made both mandatory and binding, presumably with a view to putting the Family Division out of business.
Posted by: Martin | May 25, 2006 2:05:39 PM