Following the high-profile Miller and McFarlane divorce cases, will the legal landscape be littered by pre-nuptial agreements? Jon Robins investigates

Following the ruling of the Law Lords last month in the two big-money divorce cases of Miller v Miller and McFarlane v McFarlane – where it was held that women were not only entitled to an equal share of the family assets post-divorce, but that ‘stay-at-home mums’ were also entitled to compensation for sacrificing careers – a much-anticipated legal industry has been kick-started: advising on the pre-nuptial agreement.


The judgment, and the acres of news coverage it received, have persuaded many couples to introduce a note of pragmatism into their romance and to take a trip to their lawyers. ‘In the last couple of days, I have been inundated by demands for not only pre-nups, but also cohabitation agreements,’ reports James Stewart, a family lawyer at London firm Manches. Apparently the pre-nuptial agreement is no longer just a Hollywood affectation for celebrity couples.


Mr Stewart says it is not just the Miller and McFarlane judgments that have sparked interest, but also the paper published by the Law Commission earlier this month, which proposes that a partner who has enjoyed an economic advantage as a result of cohabitation should have to compensate the party who has been put at a financial disadvantage by the relationship (see [2006] Gazette, 8 June, 5). In the last ten days, Mr Stewart has drafted four ‘fairly big’ pre-nups – ‘more than I have done in the last six months’ – and two days after the commission paper he has been approached by two couples to draft cohabitation agreements.

He adds: ‘The bottom line is that neither Miller nor McFarlane had the benefit of a pre-nup, and that seems to be the case with Paul McCartney (who is reported to be separating from wife Heather Mills), and the House of Lords’ judgment illustrates just how important it is to consider entering an agreement prior to marriage.’


While there might have been no formal agreement, James Pirrie, a family law solicitor at London firm Family Law in Partnership who advised Julia McFarlane, points out that the Law Lords had taken into account his client’s ‘unwritten’ pre-nuptial agreement – in other words, the agreement that she would bring the kids up while her husband pursued his career.


So what was the combined impact of the two cases? Mr Pirrie says that, until last month, maintenance for a mother who gave up her career was based purely on living costs. His client had been married to a senior tax partner at accountancy firm Deloitte & Touche, who was earning more than £750,000 a year. They were married for 18 years, and she gave up her own high-flying career in the law to raise three children. The Lords agreed with Mrs Mcfarlane that she was entitled to £250,000 a year for life, scrapping a five-year limit imposed by the Court of Appeal judges. ‘Judges must consider contribution in compensation, and for people like Julia that’s only fair, and the judgment recognises her sacrifice and that marriage is a partnership,’ explains Mr Pirrie.


The case of Melissa Miller is more likely to precipitate a deluge of pre-nups, lawyers predict. Her marriage to multi-millionaire fund manager Alan Miller lasted only three years. The Lords ruled that she was entitled to keep £5 million, one-sixth of her husband’s wealth. ‘In a short marriage involving a childless couple, focus should be on the standard of living during the marriage rather than on hopes and expectations at its beginning,’ Mr Stewart explains. ‘The award should enable the wife to make a gentle transition to independence.’


But does the Law Lords’ judgment have any impact beyond the tiny number of big-money cases? Nigel Wilson, a family law associate at national firm Irwin Mitchell, stresses that the judges have been ‘careful to express it in a way that the judgment is particularly reserved for those cases where there is a surplus of wealth’.


He adds: ‘The reservation I have is the introduction of “compensation”, which is a notion that we are completely unfamiliar with. If you take the view that you now have to compensate as a specifically separate exercise, then surely that applies to medium-value cases. Some women, even though their children have grown up, may well have given up their careers before the birth of their first child, and may well have returned to the market-place when the youngest was at secondary school. Their career path would have been nothing like what it would have been had they stayed at the coal-face.’ He says such women would ‘suffer the long-term effect of that relationship-generated disadvantage’.


Whatever the impact of Miller and McFarlane, the legal enforceability of pre-nups is a moot point. ‘The courts are giving them increasing weight and recognition,’ reckons Mr Wilson. ‘They aren’t yet legally blinding, but that’s not to say that they won’t be so at some point in the future.’ He points to the leading case of K v K (Ancillary Relief: Pre-nuptial Agreement) [2003] 1 FLR 120, where the man had assets of £25 million and had not wanted to get married after his model girlfriend, who had trust assets of £1 million, became pregnant. The woman’s father insisted there should be a marriage based on a pre-nup. Each party had separate legal advice before signing and their respective solicitors knew that the wife was expecting. The agreement was largely upheld. ‘They held the spouse to a £120,000 lump sum, plus a £1.2 million trust fund in place for the child,’ Mr Wilson says.



The previous year there was the case of M v M (Pre-nuptial Agreement) [2002] 1FLR 654, concerning a Canadian couple who drafted their pre-nup shortly before their wedding. The wife was pregnant and anxious to get married and the husband, who had previously been divorced, was keen to protect his financial position. The agreement provided that if their marriage broke down, the husband would pay the wife £275,000 in full settlement. Their union collapsed after five years. The wife argued that she should not be bound by the agreement because she was vulnerable and under pressure when she entered into it. ‘The furthest that the court would go was to say that it would guide them towards making a more modest award than it would without the pre-nup,’ says Mr Wilson. In the end, the court awarded her £875,000.


As a result of the case law, Kevin Hand, a family law partner at London firm Child & Child, says that solicitors have a protocol to follow. ‘It requires that you cannot enter into a pre-nup within one month of being married. Both parties have to make full and frank disclosure, and both parties need independent legal representation,’ he explains.


Mr Stewart also flags up the ‘safeguards’ set down by the government in its Supporting Families paper, published in 1998. According to that, any contract is likely to be unenforceable if there has not been full disclosure, or where the enforcement of the agreement would cause ‘significant injustice’ to one party, or where there are children. ‘The bottom line is the force of a pre-nup will always diminish with passage of time,’ says Mr Stewart. ‘In a short childless marriage like that of the Millers, a pre-nup could have great effect. A long marriage with children such as the McFarlanes’, drawn up 18 years before the divorce, would have little effect in my view.’


Mr Pirrie maintains that there has not been any significant acknowledgement or otherwise of pre-nups from the courts since K v K. ‘But what has changed is the profession’s view of them. It has taken time to percolate down through the profession, and to permeate into the public consciousness,’ he says.


Pre-nups fit well within the fast-growing ‘collaborative law’ model – in other words, where two parties sit with their respective lawyers around a table and agree not to go to court to resolve their dispute. ‘Pre-nups are an idea whose time has come,’ Mr Pirrie asserts.


Jon Robins is a freelance journalist