The Legal Week.co.uk

OPINION: Leslie Cheesman on why Coleen McLoughlin doesn't need a pre-nup

Posted by Ben Schofield on July 15, 2008 11:04 AM | 

IT'S been less than a month since Merseyside power couple Coleen McLoughlin and Wayne Rooney tied the knot, but I've already heard several media commentators declaring Coleen's decision not to sign a pre-nuptial agreement as a "foolish" mistake - what nonsense.

Coleen is a vivacious and intelligent young woman and her instincts against a pre-nup are entirely correct, not only emotionally but legally.

If, perish the thought, Coleen were ever to find herself in need of financial relief she is better off with the discretion of judges, as based on recent case law she would do very well indeed.

Leslie Cheesman.jpgCertainly, pre-nups can provide a useful guide to the judge on man and wife's intentions on the division of assets should the marriage fail (and judges are increasingly taking them into account), but they are not necessarily advantageous in all circumstances.

This is because they are not legally binding in this country and parties cannot by entering into a pre-nup oust the jurisdiction of the court to deal with financial provision on the part of the wife.

So, when will the national media, through their coverage of celebrity weddings, stop perpetuating the myth that pre-nups are the be all and end all?

This confusion over the legitimacy of pre-nuptials has been caused by the recent Court of Appeal case of Crossley vs Crossley, where Susan Crossley pursued a share of property tycoon Stuart Crossley's £45m fortune.

Mrs Crossley, described in court as a "career divorcée" had signed a pre-nuptial agreement in which she agreed not to pursue a share of her fourth husband's riches should the marriage fail.

Mr Justice Thorpe held that the agreement was "a factor of magnetic importance" and Mrs Crossley subsequently dropped her claim. She had after all extracted some £18m from her three previous nuptial enterprises.

Despite the judge's comments, this case did not change the law in England and Wales. Though pre-nuptials have been recognised by courts in the US, Canada, Australia, New Zealand and Scotland, a draft parliamentary bill on the issue of introducing pre-nuptials in England and Wales is not due to be proposed until 2012.

Coleen thinks pre-nups are "unromantic". My advice to Coleen is "never with a pre-nup I thee wed".

LESLIE CHEESMAN is senior partner with Liverpool-based firm Cheesman and Company.

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