A prenuptial is an arrangement hardly worth making

By Jonathan Goldberg, January 12, 2012
Courts regard prenups as decisive only where ample assets are involved

Courts regard prenups as decisive only where ample assets are involved

Frieda from Leeds writes: My only son is in his mid-thirties and he is a truly lovely boy with a heart of gold. However, I have to recognise as his mother that he is a boy of simple ways and a loner, who has sometimes been taken advantage of.

He works hard, but his career prospects as a retail salesman are modest. After many years of living on his own, he has met a girl whom he wants to marry. She is a few years older than him, and she also has a modest job, as a beautician. They say they intend to start a family as soon as possible. In all honesty, she might not have been my first choice for his wife, but she is a sweet girl who seems to love him, and, certainly, he is wild about her. She has agreed to convert to please our family.

His father and I are not wealthy, but we offered to give him £140,000 towards buying a house. However, we said we wanted them both to sign a prenuptial agreement with a solicitor, to acknowledge the fact this money was coming to him from us, and was a big part of his future inheritance. We want to avoid a situation where they might divorce in a few years time, and she might then seek half (or perhaps more) of this money.

At first they readily agreed to sign such a document, but now my son tells me she adamantly refuses to do so. He has revealed that she comes from an abusive background - her father deserted her - and that she says this proves we do not love her.

She is asking what will happen if my son were to desert her in future when she might have children of her own. She says we might then throw her out with nothing. Of course, we would never behave like that to our own grandchildren. We were minded to withdraw our offer altogether, but fear we may then lose our son. Is there anything we can do to protect his inheritance?

Frieda, with official figures showing that 45 per cent of all marriages in the UK now end in divorce, it is easy to understand your concerns. This is one of those situations where I can tell you in dry terms what the law says, but the human dynamics may well counsel a different approach.

In essence, the jurisdiction of the court to divide the property of both husband and wife on divorce can never be ousted. The court will do whatever is fair, and foremost in its consideration will be the welfare of any children. This is the case whether or not your future daughter-in-law were to sign any kind of prenuptial agreement. After many decades during which such agreements were viewed with caution and even disdain by the courts, because it was thought they might encourage marital breakdown, the modern position is very different. Great weight will now be given to a prenup, and often decisive weight, but only where there are ample assets available, thus making it fair to do so.

If, for example, she were to fall ill, even after a short, childless marriage, and were unable otherwise to support herself, it is likely the court would order the equity in the home to be given to her. It would make no difference that the money had originated from your side alone. Likewise, if there were a divorce after a child had arrived, it is likely the court would award her most of the equity in order to place a roof over that child's head, assuming she were going to be the principal future carer. In real terms therefore, a prenup is very important for the rich, but is likely to be of little importance here.

Your options seem to me these: withdraw your offer and let them fend for themselves, or buy the house yourselves and retain ownership, allowing them to live in it, perhaps paying a modest rent. You can then do whatever you want with the house later in your wills, having seen how things turn out.

Alternatively, give him the money in a cheque made out to him alone, recording in a side-letter that this was a gift to him exclusively (take advice on gift tax implications). This should give him pretty much the same protection as a prenup would do, in the event of a short and childless marriage.

Or who knows? The wisest thing might simply be to give them the money jointly. Perhaps this understandably insecure girl will flower and become a better wife and daughter-in-law if you show her such extra confidence.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.goldbergqc.com

Last updated: 11:31am, January 12 2012