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Laws of Eve | Who needs a prenuptial agreement?

Published:Thursday | May 18, 2017 | 12:00 AM

Perhaps the adaptation of the quote from Robert Burns - "The best-laid plans of mice and men often go awry" - best characterises marriages that end in divorce. Couples usually embark on marriage with the best intentions for 'happily ever after', and it is unlikely that thoughts of separation or divorce arise on the joyful wedding day. However, the high divorce prevalence rates and the rigours of lengthy matrimonial property division and maintenance claims sound caution bells.

For the divorcee who has already endured a messy divorce or, even if the divorce was amicable, he or she had children and property from the first marriage and want to secure the children's future, a prenuptial agreement is a viable option. Also, for the young couple who expects to inherit a share in the family business, even if they never contemplated a prenuptial agreement, their families might insist that they sign one.




There is always some tension and anxiety when prenuptial agreements are being discussed because they do not fall neatly into wedding plans. In some cases, during the negotiation of the prenuptial agreement, the wedding plans get shelved altogether, and I have theories as to why this is so:

- It is unseemly to discuss separation in the same conversation as the marriage, because prenuptial agreements are just not romantic.

- There is usually disparity between the net worth and earning potential of the spouses.

- The conversation about the prenuptial agreement usually takes place close to the date of the wedding and interrupts time that should be spent planning the wedding.

- Financial issues are not often discussed during premarital counseling, so they are sometimes first mentioned by lawyers and, with each party needing to have an attorney, the dialogue may become adversarial.

- For younger couples, the family's influence and pressure may make it more difficult to negotiate the terms of the agreement.

Even when the stars appear to be perfectly aligned for the signing of a prenuptial agreement, each couple must carefully consider whether such an agreement is ideal for them because it might create more challenges than it could potentially solve.

It should also be noted that the existence of a prenuptial agreement is no guarantee that there will be no court actions concerning marital property. There are many examples of cases in which the parties to prenuptial agreements make claims in court to avoid being bound by the agreements. In fact, the recently reported case surrounding Alan Thicke's estate provides one example that prenuptial agreements may even be challenged after the death of one party. Even the perfectly planned estate could become entangled in legal claims. According to media reports, Alan Thicke created trusts in favour of his adult children and signed a prenuptial agreement with his wife of 10 years.

Thicke died on December 13, 2016, and his widow is contending that the prenuptial agreement is invalid, and two of Thicke's sons have commenced court action to enforce their father's wishes.

In the end, there is no predictability in marriage or in relation to prenuptial agreements, so the decisions to marry and to sign prenuptial agreements are matters which must be given equal care and consideration. It is only then that parties can determine whether a prenuptial agreement is right for them.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to or