Let's take religion out of this first. There are obviously going to be two sides to this issue. In favour: they are being realistic as at least 40%-50% of all marriages end in divorce depending on which country data you are taking, and you want things to be easier for both sides if it should end, the amount of time spent wrangling in divorce courts is such a waste of time. Not in favour: destroys the very essence of marriage (lifelong concept); dilutes the importance of marriage, partnership, trust and romance.
Straits Times: 'Prenuptial deals: Court clears the air', as the validity of prenuptial contracts (prenups) are on the minds of many young couples thinking of tying the knot. The divorce of the Dutchman and his Swedish wife generated much interest here as, before this landmark case, the courts had not indicated specifically whether such prenups should be upheld. Since the couple had entered the prenup before a notary, such an agreement should be given much weight.
Prenups are authorised by law in some countries like Thailand. A man who is thinking of marrying his Thai girlfriend should seek advice from a lawyer familiar with Thai law, more so if the couple live in Thailand. Prenups are valid in 50 states in the United States. Case law is sufficiently developed and a well-drafted prenup can withstand the closest scrutiny. On the other hand, prenups are not recognised in Britain. However, some weight may be given by the court, which will take the content of the agreement into account when reaching its decision.
It used to be that only those with vast fortunes to protect considered a prenup as part of their wedding plans. Now, however, it is not just the rich and famous who iron out their financial obligations in the event of a divorce before they even take their marriage vows. Such steps may not be necessary for every couple, but in the light of the rising divorce rate and more common second marriages, many couples welcome the suggestion of a prenup.
Couples entering their second marriage often execute an agreement to protect the interests of their children from a prior marriage. Young professionals turn to prenups as a way to protect the rewards of their personal success. Even couples without much assets look to prenups as a way to avoid an acrimonious battle over what they accumulate during the course of the marriage.
To ensure the agreement is binding, the parties must make a full and fair disclosure of their financial worth. It is also desirable to have each party seek advice from their own lawyer. Since an agreement signed today may not be fair in the future, the parties can agree to make adjustments based on factors such as length of marriage or a change in relative earning capacities.
As celebrated English judge Lord Denning once said, divorce and financial matters are probably last on the list of things a couple want to contemplate on their wedding day. In the proper context, however, such a discussion can lead to a prenup that both parties view as a precaution designed to prevent a prolonged and expensive divorce settlement.
More often than not, one partner has greater assets and stands to lose a larger sum in the event of a divorce. Other considerations to think about include one spouse who will support the other through university (and wants an equitable share in future financial gain), or if one partner already has children from a previous marriage.
Be that as it may, the prenup should be entered into voluntarily; it should not be unconscionable. It should not be so one-sided and oppressive that no one in his right mind would sign it without duress. Enforceability is more certain when the prenup does not harshly and unfairly eliminate a party's rights to property acquired during the marriage.
In short, prenups will eliminate a long and costly court battle if there is proper disclosure by both parties, and the terms of the agreement are not harsh and unconscionable.
1) Prenups should be encouraged if one party's assets/ net worth is 90% or more of the combined couple's net worth. If its not, I would rather say forget it and just carry on.
2) Prenups does not give the richer party the right to take back all he/she brought to the marriage - the party still has to bear the cost of raising the children, alimony/palimony, sharing of assets acquired during the marriage, etc... But it does give some clarity: for example when Mr. Hui married Lee Kar Yan, I would be very shocked if she did not signed a prenup. As rich as Miss Lee is (maybe to the tune of US$20m), that is nothing compared to Mr. Hui's net worth which is more than US$500m. Hence a prenup might read something like this:
- if divorced within 5 years, she will get US$25m
- if divorced within 10 years, she will get US$50m
Some prenups can be very detailed, especially when it comes to kids, but that's another thing.
3) The more you can agree in a prenup, the more you will understand each other. Trying to be romantic in not having a prenup is naive and silly as you have a very good chance (backed by solid empirical data testing) of ending up in divorce courts later. Then you will spend hundreds of hours arguing over who gets what, how much to pay, which house you want, whose momentos are those, which school to send the kids, is having two maids too extravagant, etc... thus enriching the lawyers - ever seen a rich lawyer not having a prenup??? If a rich lawyer lives in a country where prenups are not allowed, well that's why those rich lawyers don't go around philandering so much... now you know why. I have never heard of a rich lawyer with a mistress, and being caught... wonder why??!!
4) Those sticking to the romance of not talking about money and assets are deluding themselves. It may not sound romantic but its very liberating. One of the biggest problems with marriages is the fact that many are entering with differing assumptions and belief systems, and both sides don't know that of each other.
6) Those who are the poorer partner in a marriage do not need to fear prenups. Most will still be much much better off financially in a divorce even with a prenup. If your net worth is zilch and your partner is worth US$30m, rest assured that he/she will put in the prenup that you will get a lump sum (which will not be close to 50%) of maybe 5%-15% of his/her net worth.
7) Prenups do not cause marriages to fail, marriages have been failing very nicely without prenups, OK!
8) Those religions which says that marriage is forever tend to frown on prenups. Well, without the prenups, these religious marriages almost have the same divorce rate as the rest of the population. No need to hide behind the sanctity of marriage and excuse yourself from helping one another face these important issues better.
9) Some will say that if they go down a road expecting it to fail, they'd rather not take that road. That is so naive, nobody wants marriages to fail, but they do fail. The divorce rates is at least 20% or higher - that is a given, whether you have prenups or not. Having said that, have you ever noticed how people at weddings are probably the most optimistic people on earth. The well wishers, the smiles, the laughter, the excitement of starting a new journey with glee and anticipation.... all optimists... if they know that their marriage has about 2 in 10 chances of failing, that would take some of the steam from the souffle ... but then again, any excuse to be drunk is still a good idea.
10) Those who say they enter a marriage based on trust... well and good, but what are you trusting in??? That your partner will act and behave in the manner that you know. Well, all who say that should go to divorce courts and sit in a few cases - see where the trust, patience, understanding have gone to... We have been deluded by notions of undying love, everlasting loyalty, unshakable romanticism, profoundly deep love from story books, TV and the movies .... I am not saying they do not exist, they do, but still you must be realistic.
11) Marry for the right reasons - Many will cite love, many more will justify their love of the person's character, even looks, disposition, genuineness, gentleness, their level of intelligence, their humouristic ways, even the way they speak, the way they carry themselves, how they treat us, etc... but to cite that you love them partly because of their net worth is close to being vulgar and despicable. But you and I know that that is a significant reason for marriage in many cases. By not talking about it is naive and even maliciously fraudulent. People will speak of the need for security (money), comfort (money), ... but will not mention the real M word. MY advice is, be clear and be outright with it, it will bring your relationship to a much higher level.
I have no issues with prenups, I think they are great provided the prenups are crafted with care, love, respect and good wishes. It is so much easier to agree on these things when things are going well... how to agree on those things when the relationship is down in the dumps?? Anyway, I'd probably don't have to ask my future wife to sign a prenup, in all likelihood, I will be the one being asked to sign one.
Love in all its grandeur and glory is wonderful and perfect. To strive for perfection and ultimate bliss is to be human. To fail is also because we are human. We are fallen beings, do not think that we are angels on earth. Its not heaven yet though we may like to think that sometimes.
p/s photos: Gigi Lai Chi