London - It is the latest must-have for wealthy couples about to marry.
Growing numbers of brides and grooms drawing up a prenuptial agreement are insisting on an infidelity penalty clause, a top divorce lawyer revealed recently.
The clause means that if the pair break up because one of them is unfaithful, the adulterer will lose much of their share of the divorce settlement.
Divorce lawyer Ayesha Vardag said that adultery clauses were “at the fore” of the development of prenup deals.
The infidelity penalty that makes it costly for a husband or wife who is discovered to be unfaithful means the return of the concept of “fault” to English divorce law.
For 60 years judges, lawyers and politicians have tried to eradicate the idea of fault from marriage law on the grounds that it is both difficult and unfair to try to identify and punish a spouse responsible for the break-up of their marriage.
But in 2010 the Supreme Court gave legal backing to one of Vardag’s clients, Katrin Radmacher, in a landmark case. It ruled that her prenup should be taken into account when assessing her divorce settlement.
This made it harder for divorce courts to ignore pre-marriage contracts. A change to the law formalising the legal status of prenups is now being considered. Meanwhile couples using the new infidelity clauses in prenups are returning to the traditional idea that when a marriage fails someone is to blame and must pay.
The use of penalties for infidelity is likely to spread from celebrities and the wealthy to ordinary middle-class couples as more people seize the new legal opportunities.
Prenups are likely to prove worthwhile to those who wish to protect suburban family homes and middle-income savings and pension pots from expensive divorce settlements imposed by the courts.
Judges do not take adultery into account when they divide a couple’s assets in a contested case – a practice which has persistently angered husbands ordered to pay a large share of their wealth to an unfaithful wife. Vardag, sometimes known to rivals as “the Diva of Divorce”, disclosed the increasing popularity of the infidelity clause in an article for an academic survey of marriage and marriage law.
In the article, co-written with Cambridge University law lecturer Joanna Miles, she warned that the adultery penalties have yet to be upheld in British courts. She said: “Though stories abound of prenuptial agreements including terms imposing penalties for adultery, or setting out conjugal entitlements and housework rotas, such terms are only slowly entering practice, adultery clauses being at the fore of these.”
Vardag said that prenup deals not only protected fortunes and family homes, but they offered couples who signed them confidentiality alongside financial certainty. Wealthy men – whose wives would in the past have tried to have their divorce heard in London courts because of the generosity of British judges – were particularly keen to take advantage, she said.
“Many of the most publicised divorces of the past few years are believed to have been settled quickly by watertight prenups,” she said. “Charles Saatchi, Tom Cruise and Rupert Murdoch, to name but a few.”
Advertising tycoon and art collector Saatchi was divorced from celebrity cook Nigella Lawson in 2013, Cruise was divorced from actress Katie Holmes in 2012, and media tycoon Murdoch was divorced from Wendi Deng in 2013.
Vardag said family law firms were being approached by lawyers and advisers of wealthy people intending to marry even before the bride or groom decided they wanted a prenup.
“The first prenup brought to the lead author’s firm after the Radmacher judgment came via a telephone call from a football agent,” the article said.
Vardag argued that the effect of prenups has been to “re-emphasise the concept of marriage as a legal bargain”.
She added that the act of drawing up a prenup can have the effect of dissuading unsuitable couples from going through with their marriage.
A “well-managed prenuptial process can thus become an integral part of the parties’ engagement and marriage”, Miss Vardag said.
Daily Mail