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Would Austenian characters be persuaded with pre-nups?

It is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife… and a pre-nup, writes Rebecca Christie

Jane Austen fans believe that her plots of love, marriage and money are as relevant today as they were in the 18th century, but would any of her characters, really have got a pre-nup?

Marriage looks very different in the 21st century than it did in the 18th. By way of example, women are no longer cut out of wills, making marriage more than just a ‘manoeuvring business’ as Mary Crawford observes in Mansfield Park. But it is safe to say that marriage is still the most important contract anyone will enter, especially because it is the only important legal agreement that is so skewed by emotion. As Jane Austen says herself, ‘we are all fools in love’.

2016 saw a 5.8 per cent increase in divorces in England and Wales, 42 per cent of all English marriages now end in separation. From high profile divorces, we know that court proceedings are expensive and all too often an unpleasant lottery, bringing to mind another Austen quote: ‘Angry people are not always wise’. The increasing sense of distrust in the divorce process has resulted in pre-nuptial agreements becoming ever more popular. They are a way for people to regain control over the uncertainty that comes with a potential divorce. Recent case law has shown that such agreements are getting legal recognition; culminating in the 2010 case of Radmacher v Grantatino, which sets out the law as it currently stands.

Although pre-nups are not strictly binding, there are ways of ensuring that they have the power of 'Persuasion' on a court as part of a divorce hearing, as long as the following rules are complied with: the agreement is signed 28 days before the wedding, both parties had sought legal advice so neither can claim to have been under duress when signing the agreement, that the pre-nup itself is fair to each of the parties and all relevant assets are disclosed appropriately.

It is a very British thing to feel that talking about money and marriage is distasteful, but Jane Austen had no qualms about telling her readers about her characters’ income and assets. We know, for instance, that Mr Darcy in Pride and Prejudice had an annual income of £10,000 a year (in today’s terms £61.58 million!). Jane Austen addresses the reality of people's lives that money affects each and every one of us.

Of course, it is undeniable that conversations about money are rarely comfortable, but a focused conversation between a couple on the management of their future finances can often make people feel more secure with each other. Some even see a Pre-Nup as a romantic gesture; the financially weaker party will often be keener to sign the agreement more than their fiancé in order to show that they are not marrying them for their money, a gesture that Jane Austen would have approved of.

Further still, a pre-nuptial agreement requires people to be honest and upfront about their assets and liabilities, something that Miss Grey and her £50,000 would have benefited from before she married Mr. Willoughby in Sense and Sensibility. Through the process of finalising their pre-nuptial agreement she would have found out that her future husband had a very different attitude towards money than she did.

It would be wrong to think that pre-nuptial agreements are just for the Mr Darcys of this world. Well off, ordinary couples are also requesting them, whether it is to protect inherited wealth, or to ensure that assets are passed on to one’s own grown children rather than step children, or in order to ring fence wealth someone has amassed independently of the marriage. Pre-nups are not cheap, but they are a whole lot cheaper than a bitterly contested divorce. As Anne Eliot says in Persuasion, “One does not love a place the less for having suffered in it, unless it has been all suffering, nothing but suffering”. It is therefore important that that place should not be the family court, and all for the want of a pre-nup.

Rebecca Christie is a solicitor at Hunters Solicitors