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My opinions on prenuptial agreements are well known. I don’t like them, do not believe that they are “socially necessary” and do not believe that they should be automatically legally binding. I would not have signed one myself — nor married anyone who asked me to as a precondition of marriage.

However, parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups. Many of these parents are wealthy, some are super-wealthy and others are not wealthy at all. What they share are concerns about what will happen if their children’s marriages break down. They don’t want any of their hard-earned cash to pass to the divorcing spouses, and they are determined to protect their money.

It’s understandable. But is it reasonable — or advisable — to expect a future son or daughter-in-law to enter into a prenuptial agreement? I’m not so sure. What is often overlooked is the effect of a prenuptial agreement on the marriage itself.

I believe that in many cases, the existence of such an agreement can actually bring about a divorce.

Consider the vulnerability of any newly married couple, working to make their marriage a success. Suppose they are showered with wealth by one side of the family. Then consider the effects of the imbalance that results if a prenuptial agreement is added to this equation. One party has the money; the other party is shackled to a piece of paper that — in theory — leaves him or her unable ask the court to use its discretion and consider needs and entitlements in the normal way. They are married, but they do not have an equal footing within their marriage. Their attempt to forge a life together can only be hampered by such pressures.

If family members feel the need to protect their money, they should ring-fence it so that no outright gifts are made until they are satisfied that the marriage will work. Here at Stowe Family Law we often advise parents on suitable trust structures and acquisitions of assets, loans and mortgages, in order to protect family money or assets. It isn’t ideal and isn’t necessarily tax effective either, but it’s a practical option. It means that unwelcome and unpleasant pressure is not placed upon a young couple about to begin their life together, and it means that the balance of power between them is not disturbed.

In my work, I have all too often witnessed the catastrophic effects that wealth can wreak.

Common sentiments include, “You only have this house because my family bought it”, and “All you care about is your family and their money”. I have come to believe that a great deal of money placed into young, inexperienced hands - particularly if it is tangled up in legal “gobbledegook” — is a recipe for disaster.

My advice to parents who intend to give large sums to their children on marriage is this: protect your money, but don’t subject your loved ones to unnecessary pressures and constraints. In the worst case scenario, you could end up exposing your child to the very divorce from which you are trying to protect them.

Nicknamed "The Barracuda" for her tenacity, Marilyn Stowe is one of the UK’s most sought after divorce lawyers, and is the senior partner at Stowe Family Law.

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4 comments

  • Comment Link Guest Sunday, 29 April 2012 01:51 posted by Guest

    Get that prenup to address: Get that prenup to address who is going to pay the mortgage and that all joint accounts and savings at the time of separation be frozen. That way all those hard earned assets don't go toyour cheating spouse's new love. Every family court should have a financial analyst guide settlements. Even in community property states assets are seldom divided down the middle and it's been my experience that money is hidden by those who are unfaithful long before their spouse even is aware of it. Dissipating assets are the norm in a divorce and usually the larger wage earner has the advantage. My ex walked out on all his financial obligations the house the children in college and pulled in a paycheck that easily should have covered these. M y children recognize that they are better off financially not combining finances. Why get msrried?

  • Comment Link Guest Friday, 27 April 2012 07:22 posted by Guest

    No Fault State Divorce: "Most of a couple's property, including assets such as retirement interests, can be divided in a divorce. One exception is property received either as a gift from a third party or as an inheritance, although even gifts and inheritances may be divided in some circumstances." - from http://www.wisbar.org.

    I kept my inheritance / gifts from my parents separate from joint funds - which was helpful as this did not get divided in the division of property.

  • Comment Link Guest Thursday, 26 April 2012 14:27 posted by Guest

    Prenups don't cause divorce: I believe that prenups are a smart thing to have, albeit, uncomfortable to discuss. I can understand not wanting to start a marriage discussing what will happen if it fails but when the curtain drops, and it does or we wouldn't be on a divorce website, the extra pain about having to divide money can add a whole new level to the pain of divorce. So as for the article stating that parents shouldn't give outright gifts "until they are satisfied that the marriage will work" how long is that? Marriages fail at 10 years, 15, 20 years, 30 years...so parents can't possible be sure a marriage will work. And what if the spouse is only hanging around waiting for that reassurance from the wealthy parents and then BAM! They leave with half the assets?

    Example: A friend brought a large 401K to her marriage. She started saving with her first job and worked hard for every dime. Her husband brought nothing because he was a spendthrift and is father gave him everything. 15 years into her marriage, her husband had an affair and left her with three small children. She lived in a NO FAULT state where assests are divided 50-50. She didn't want to split that money with him because 1- he didn't earn it, 2- HE cheated, and broke the marriage vows. She saw it as another devastating blow that nearly broke her. He was being REWARDED, with her retirement money for cheating and leaving her with 3 young kids.

    You can never convince me that a prenup is a bad thing. People screw up marriages, paperwork doesn't.

  • Comment Link Andrea Thursday, 16 April 2009 11:47 posted by Andrea

    Disagree: I don't agree with this at all.

    It is only wise, prudent and fair for parents to try to protect their wealth. My father (well off but not wealthy) set it up so that any gifts are in trust (only for me and my children), and his inheritance passes to ME (not me and spouse) and even if I pre-decease my father his inheritance goes to my children and not the spouse.

    That's just smart not putting pressure. My husband always understood this. If someone's spouse doesn't, then maybe they are not in the marriage for the right reasons. If you know what I mean.