"Courts should respect pre-nups in their entirety if they have met the relevant criteria. These include both parties understanding the agreement, no undue pressure to sign, consideration being given to child provision and the opportunity to take legal advice” she says.
Vardag's call comes as accountants Grant Thornton reveal the results of a survey (here) showing that, for the first time, more than 50% of top English lawyers back legally-binding pre-nups.
The survey also shows demand for pre-nups has soared over the past year with three-quarters of English family lawyers saying they are drawing more up.
Vardag of Strand-based Ayesha Vardag Solicitors (www.ayeshavardag.com) believes all couples should sign a prenuptial agreement before tying the knot, as a matter of course.
Prenuptial agreements have become more socially acceptable in recent years, and while English courts are allowing greater freedom to couples wishing to regulate their own affairs by legal agreement, the court’s final say – which can override a pre-nup - can often mean the moneyed party in a relationship can lose out substantially.
“English law used to ensure that only the 'reasonable needs' of the financially weaker party were met,” Vardag explains.
“But since a leading case in 2000, the principle of a fair division of assets has reigned supreme and has brought the English courts close to a presumption of equal division of the assets acquired during a marriage. “
A number of big money payouts in recent years have brought the courts’ approach under scrutiny:
• Sir Paul McCartney was recently hit with a £24.3 million settlement after just four years of marriage to Heather Mills;
• Alan Miller, 42, a City fund manager worth £32 million, was ordered to pay his former wife, Melissa, 36, £5 million after a childless marriage that lasted just two years and nine months;
• Julia McFarlane, 46, won £250,000 a year for life from her former husband Kenneth, 46, an accountant earning £750,000 a year - in addition to the family home;
• Beverley Charman was awarded £48 million against assets earned by her husband during their marriage.
English courts might even be operating in breach of the European Convention on Human Rights by failing to give legal force to prenuptial agreements, Vardag suggests.
"Responsible adults, often coming into second and third marriages, want to be able to organise their affairs in a way that protects their hard-won security in life and that of their children" she adds. “Marriage is a legal status with significant financial implications. If we are free to contract in other areas of our lives, why not in this?”
“If couples are permitted to regulate their own affairs by pre-nuptial agreement rather than leaving it to the discretion of the courts, marriage will make more sense to more people. At present, marriage is starting to look like rather a dangerous romantic folly”.
Notes to Editors:
Ayesha Vardag graduated from Cambridge University with Honours in Law and from Brussels with a Master’s in European Law.
Her firm, Ayesha Vardag Solicitors, works regularly with the leading figures at the family law Bar on some of the biggest cases in the English courts.
Previous press coverage can be seen here.
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