In July 2015, in their broad reaching proposition on 'Same-sex Marriage, Divorce and Dissolution', the States agreed, in principle, to make significant changes to divorce law in Jersey – including that consideration should be given to making pre-marital (pre-nuptial) agreements legally binding in the event of divorce.
With the increased likelihood that the Jersey courts will enforce such agreements, couples should carefully consider the practical benefits and negative effects a 'pre-nup' may have on a marriage.
No couple can honestly say they enter into marriage with divorce in mind, although with 50% of all marriages now ending in divorce, considering a pre-nuptial agreement may seem a practical and sensible step. Signing couples can be certain in advance of what will happen if they separate and can therefore anticipate significantly lower legal costs in the event of divorce (although costs will be incurred in agreeing the terms of a pre-nup). Pre-nuptial agreements can also safeguard family businesses and effectively protect assets within a marriage whilst also providing for a spouse and children.
Planned safeguards would be in place, including that a pre-nup will be effectively ignored in the case of financial hardship. This is a very subjective test which has been disputed in the English courts; 'financial hardship' for a spouse who is sharing a modest income can be very different to one who is in a marriage with assets worth many millions.
It is also true that the party with fewer assets when signing up to a pre-nuptial agreement often obtains less on separation than they would if they divorced through the courts. In light of this, it has been argued that pre-nups create 'an unequal marriage' where one party has financial dominance over the other. It's not unfeasible to imagine a situation where a spouse would stay in an abusive or unhappy marriage because the pre-nuptial agreement is in place.
Ultimately, those entering into pre-nuptial agreements need to be, as far as possible, rational and unemotional when making decisions that may have far reaching financial consequences; a tough call when you are also planning what is meant to be the happiest day of your life!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
