Kim and Kanye Divorcing: Should more of us consider a Pre-Nuptial Agreement?

Kim Kardashian and Kanye West are getting divorced. Reports so far have commented on how amicable the process has been, given that the division of their significant assets (collectively said to be worth over $2 billion), will be based upon their prenuptial agreement. Pre-nuptial agreements are a prerequisite when it comes to celebrity marriages and divorces, given that both parties want to protect their considerable wealth.

However, for those of us whose net worth does not exceed 7 figures, it seems pre-nuptial agreements have negative connotations. The assumption being that one party simply does not trust the other or is pessimistic that the relationship will fail, and is preparing for that eventuality. Marriages are not entered into with the expectation that they will end, therefore pre-nuptial agreements are often overlooked.

The current climate has undoubtedly put a strain on relationships. Even recent statistics show that between 2018 – 2019 there was an 18.4% increase in divorces. It is likely that the difficulties of the pandemic will be reflected in divorce statistics over the next few years. Although the ‘roadmap’ out of lockdown has been cast, it is unlikely that the problems couples have faced during the pandemic will disappear along with the restrictions on the 21st of June.

In light of the above, it is important now more than ever to be realistic and prepared for all eventualities for the future of the relationship. A pre-nuptial agreement can ensure that, should the relationship break down, the process of divorce is far less burdensome and that costs are significantly reduced, as the contentious issues regarding finances will for the most part have already been decided. The process of divorce can be extremely emotionally draining, particularly when there are children involved. This can often cause a deterioration in mental health, meaning the benefit of making the process more amicable and efficient cannot be stressed enough.

An individual may be apprehensive to enter into a pre-nuptial agreement on the basis that they will be significantly disadvantaged at the point in which it takes effect. However, pre-nuptial agreements are not binding in England and Wales, meaning that the Matrimonial Causes Act 1973 will always be the starting point. This legislation, specifically section 25, requires the Judge to examine a number of criteria to assist the Courts in reaching a fair outcome. However, as detailed in the case of Radmacher v Granatino [2010], a pre-nuptial agreement will be given decisive weight provided it is “freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.” A pre-nuptial agreement does not therefore preclude a spouse from applying for a financial remedy outside the scope of the agreement. The first consideration of the Courts will always be for the welfare of the children.

The following conditions should be satisfied to ensure an effective pre-nuptial agreement:

  1. Financial disclosure by both parties
  2. Agreement entered into at least 28 days before the wedding
  3. Both parties should seek legal advice

If you are require any further guidance on pre-nuptial agreement, please do not hesitate to contact us.

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