Mo & Phindi talk prenups

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Mo & Phindi are cast members of MNet’s Power Couple SA, radio contributors and co-authors of the book Love Isn’t For Cowards. Today they look at  wedding prenups

 

Prenuptial agreements, aka wedding prenups, are undoubtedly one of the most unromantic subjects and we very seldom talk about them before tying the knot.

During the engagement period, many couples would rather spend their time on wedding planning while remaining completely oblivious to the reality of marriage.

And who can blame them? Who wants to talk about such a mundane subject at such an exciting time of your life? This is the time you’re supposed to be exclusively concerned about the “bright side of life”. Right?

Even the premarital counselling sessions, for those who are sane enough to take them, glibly deal with textbook issues that neither consider the couple’s unique situation nor have any bearing on the 21st century reality of marriage.

Many couples’ resistance to prenups is almost exclusively translated to a marriage that will fail. But prenups are not exclusively about divorce. It’s about protecting both of you from possible financial stress in the long run.

Think about wedding prenups

A prenup determines what happens to your assets should your marriage end because of death or divorce. But also think of the protection it seeks to provide for your assets should either of you be buried in a deep financial hole. It’s almost the norm that with every second couple we come across, at least one partner is in business, while the other is in full-time employment. Many couples, we find, are either both in business or the other is unemployed.

One of the major advantages of a prenup in this regard is that whoever is in debt between the two of you, the other can help keep the marriage afloat. Our point is the whole relationship doesn’t have to sink in financial distress because of one person.

By all means, we would hate to come across as advocating for prenups at any cost, as though prenups have no “cost” and as though they only provide benefits to a marrying couple. As such we’d suggest you consider the following realities.

Firstly, negotiating a prenuptial agreement may irrevocably corrode your marriage and has the potential to make divorce much more likely.

We learnt through our counselling experience that the future spouse who pushes for a prenup tends to demonstrate a lack of faith in the other and a lack of commitment to the marriage. That prospective spouse also presumes a lack of fairness from the other in case of marriage meltdown. There is usually an “initiator” spouse, and a “compliant” spouse.

The negotiations tend to always be remembered as uncaring by the “compliant” spouse. The dynamics of the negotiations tend to set up a bad pattern for the marriage.

Negotiating is unromantic

Negotiating a prenup is unromantic. It is a harsh business negotiation, made harsher sometimes by the lawyers who must be involved because the agreement in our country is generally not enforceable without involvement of professional legal counsel.

Secondly, the two of you negotiating a prenup usually don’t generally have equal bargaining power. Consequently, the agreement tends to be coercive and lacking in fair and equivalent consideration.

We have seen many cases where parties negotiate prenuptial agreements very close to the wedding and after the invitations have been sent out. This is not conducive for arm’s-length bargaining about a financial contract that may affect the next 50 years of your life.

Furthermore, we’ve witnessed prenups often damage the relationship between the two families.

One partner (or parents) may want a financial agreement prior to the marriage due to the existence of family wealth. The prenup generally isolates all family property as not part of the marriage, forever.

In-law conflict

Consequently, the future spouse’s family feels humiliated and disrespected, and often never forgets the rebuff through the marriage. This is not good for your marriage, as it often leads to in-law conflict that may be present for the entire marriage and remembered until death.

Having said the above, avoiding dealing with a prenup before marriage is not only unwise, but pushes you into a corner where you have no options. The issues covered in a prenup will probably arise sooner or later in your marriage anyway.

These issues include money management, wills, property rights, investments, responsibility for debts, estate planning etc. And if your marriage doesn’t work out, you’ll have to deal with divorce decisions that will be profoundly unpleasant.

Not having a prenup in our country means couples have automatically chosen to marry in community of property in terms of our Matrimonial Property Act. The state automatically makes that choice for you.

Incredible maturity, trust and foresight are probably three of most outstanding features in the process of agreeing on a prenup. You have to have an incredible ability to define your love and commitment to one another beyond property ownership. And you need to do that enough for both of you to feel secure in each other’s love.

 

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