Just in case it all goes wrong
We wish them well. But the family record suggests that a pre-nuptial agreement might not be a bad idea
Sunday 10 January 1999
At present English couples are free to draw up pre-nuptial agreements, but judges who rule on splitting the assets in divorce cases are not obliged to take them into account. In other European countries, the US and Muslim states, however, legally binding pre-nuptial agreements are standard. In the US, as well as dividing property and assets, couples can draw up agreements covering virtually all aspects of their lives, from how often they spend an evening together to who does the washing- up. It remains to be seen precisely what Rod Stewart's pre-nuptial agreement with Rachel Hunter consisted of. But in all likelihood it will mean the rock singer, whose split from his wife was announced last week, hanging on to most of his pounds 60 million fortune.
When Soon Yi Previn married Woody Allen, she gave up all claims to his cash and agreed to live in her own apartment, visiting him only twice a week. It's unlikely that Edward will want to confine Sophie to her current flat in Coleherne Court; after all, if they want to avoid each other in their stately pile, Bagshot Park in Surrey, they'll have plenty of space in which to do so.
According to lawyer Michael Drake, in this country pre-nuptial agreements tend to ignore the more intimate areas of married life and stick to the prosaic: bricks and mortar, stocks and shares. Mr Drake, partner and head of the family law department of Collyer-Bristow, is about to produce a training video for other lawyers on pre-nuptial agreements. He has looked after "a handful" of agreements over the last few months, most involving a foreign partner or before a second marriage where substantial assets are involved.
THERE is more to an agreement, he says, than simply deciding who gets the wedding-present cutlery and who has custody of the dog. "They are unromantic and complicated," he says. "Each partner has to be prepared to disclose all their financial interests, and the couple should be represented separately." And, he explains, an agreement that can predict how a couple's life will evolve is virtually impossible to draft. "Anything from a lottery win, serious illness, redundancy or, most especially, the arrival of children, can throw life into confusion. You can't draft an agreement to cover every eventuality." (Below are his suggestions on issues that Ms Rhys-Jones might consider).
Margaret Bennett, a lawyer who specialises in family law, often draws up pre-nups for foreign couples - in some cultures, negotiating a dowry is still the norm. She is rarely asked to draw one up for an English couple. "Until the Married Women's Property Act of 1882, women's property automatically became their husband's, so there was no question of agreements between spouses," she says. "Also there is the assumption that any contract between husband and wife is not regarded as legally binding. And in England we have a quite clear system of separate property - property in the name of one person belongs to that person. The situation is different in places like California, where possessions in marriage become community property."
Ms Bennett believes that a settlement on Sophie might be a better option. A sum of money would be put in trust so that funds could be made available in the event of a divorce. "With the royals, there are all kinds of issues that arise from the PR disaster of Diana and Charles's breakdown," she says. "In any agreement between these two I would expect to see a confidentiality clause and something about future standards of living - paying for staff, for example. But a settlement would probably be more appropriate."
Their situation, says Ms Bennett, is different from that of anyone else in the country, even the wealthiest. "Once you are part of the royal family, for example, you can never go on holiday without the press following - you would need some kind of protection for ever afterwards. It is a lesson learned from the case of Diana - you can't just cut ex-wives loose." And, she points out, there are only a few months to go till the wedding. "They are cutting it fine. They will have to do something to ensure that all those peripheral disasters don't happen again - like the Duchess of York not being able to pay her debts, for example."
Simon Pigott, a partner in the law firm Levison Meltzer Pigott, is usually only asked to draw up pre-nuptial agreements where the engaged have substantial assets. "We mustn't make the mistake of assuming that all members of the royal family have lots of money," he says. "Prince Edward is not on the civil list, and on the face of it doesn't have huge personal wealth. He is not in the same bracket as Prince Charles." He believes pre-nuptial agreements can be unfair, and lack the flexibility of the current system. "They don't take into account factors like how long the marriage has lasted. One of the advantages of our system, and one of the reasons why we don't have pre-nuptial agreements, is that the court will exercise its discretion and has no hard and fast formulae to follow."
THE EXAMPLE of stars who take steps to safeguard their fortunes from relatively poor spouses, give the impression that pre-nuptial agreements are a modern, rather outre transatlantic phenomenon. But their pedigree is really much longer. One of the oldest examples, says Chris Barton, professor of family law at Staffordshire University, is an Orthodox Jewish version, more than 2,000 years old, that gives rights to divorced women. Professor Barton points out that in England, too, holding on to assets is hardly a new concept. "Landed estate owners want to hang on to their brass and stop gold-diggers," he observes.
He believes contracts regulating how a couple will live, known as working relationship contracts, might be more practical than they appear. "There are all kinds of issues that can be dealt with, from how many children they'll have and what their names will be to who does the washing- up. It ensures that couples start out on the same basis, and they might realise then that they are not suited. Couples have to resolve things, and if they do it in advance so much the better." Some do make private deals. For example, William and Ffion Hague have agreed to spend one night alone together each week, plus Sundays, one weekend a month, and two two-week holidays a year.
Informal arrangements are the best kind, says Professor Barton. "Pre- nuptial agreements are cracked up as a pre-emptive way of dealing with problems, but I suspect they will simply lead to more litigation." The legislation now being considered to make pre-nups binding could have loopholes, one of which is if the agreement is deemed to have become "unjust". Professor Barton suspects that this rather loose term could lead to endless legal to-ing and fro-ing "Either you make the buggers stick or you do not," he says. "Otherwise it is just giving fat-cat lawyers another bite at the cherry."
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