Blind love, clear contracts

Love is Blind highlighted the confusion that many have around prenups. This topic sparked intense discussions among some couples. Despite it being a practical safeguard, ensuring financial protection, many can feel they undermine the trust and commitment of a relationship.

Prenuptial agreements, commonly referred to as prenups, have long been a subject of debate. In Scotland and across the UK, and further afield, they carry a certain stigma, often seen as a harbinger of doom for relationships. Couples fear that even discussing a prenup may hint at a lack of trust or romantic commitment.

This reluctance to confront financial realities before marriage has been spotlighted in mainstream media, including shows like Love is Blind. As global versions of this reality show unravel relationship dynamics, prenups have surfaced as a contentious issue, with participants in both the UK and US versions voicing concerns. The drama, emotions and confusion reflected on-screen mirror the real-life resistance many individuals face when considering prenups.

The media mirror

Reality TV shows like Love is Blind have become cultural touchstones, offering a heightened, sometimes exaggerated view of modern relationships. Participants are often seen grappling with practical concerns such as finances and trust. In the most recent UK and US series, prenuptial agreements emerged as an emotional flashpoint, causing intense reactions among couples. A key objection raised by some participants was that asking for a prenup felt like planning for divorce before even saying “I do”.

This response reflects a broader societal view: the idea that prenups are inherently unromantic or imply that the marriage is destined to fail. In the UK version of Love is Blind, for example, one participant expressed disbelief that her partner even raised the issue, viewing it as an affront to the trust they had built. Similar concerns have been voiced in the recent US series, where participants, particularly women, have suggested that prenups feel like a mechanism for the wealthier partner to protect themselves, while leaving the other more vulnerable. However, in the latest US series, it was in fact a woman (with her mother asking) initiating a prenup, and her partner, a male, was fine with that. So is there a gender imbalance when it comes to prenup perceptions?

While Love is Blind, like any reality TV show, can exaggerate these reactions for entertainment and viewers are only shown elements of conversations, these views aren’t far from reality for many couples in the UK. The perception of prenups as unromantic or pessimistic seems to pervade the public consciousness, but it’s crucial to separate emotional reactions from legal and financial realities.

Prenuptial agreements in Scotland and the UK

In Scotland, the concept of prenuptial agreements is well-established and governed by the Family Law (Scotland) Act 1985. Prenups are seen as contracts and are considered enforceable if they are deemed “fair and reasonable” at the time they were entered into – and if freely entered into by both parties, they will generally be upheld. The “fair and reasonable” standard is crucial and distinctive from England and Wales, where courts have broader discretion. This standard is slightly different from that in England and Wales, where prenups are not automatically binding but are given significant weight by courts, especially after the landmark Radmacher v Granatino case in 2010. The distinction between Scotland and the rest of the UK is important. In England and Wales, prenups have no automatic legal binding, but post-Radmacher, they are persuasive if fair and freely entered into. Scottish law is stricter about ensuring fairness at the point of signing.

The Scottish approach to prenups is more straightforward. In Scotland, “matrimonial property” generally refers to assets acquired during the marriage, with some exceptions (such as inheritances). If a couple does not have a prenup, matrimonial property will typically be divided equally upon divorce. However, with a prenup, couples can agree in advance on how their assets will be divided, potentially bypassing the equal sharing rule.

Breaking down resistance

This clear-cut approach might lead one to wonder why prenups are so often viewed with suspicion. After all, Scotland’s legal system already recognises the fairness of allowing couples to set their own terms. The issue seems to lie not in the legal framework but in the emotional resistance couples feel:

1. Prenups signal distrust

One of the most common objections to prenups is the belief that they indicate a lack of trust between partners. As seen in Love is Blind, one partner raising the issue of a prenup can quickly be interpreted as doubting the longevity of the marriage. Many couples fear that introducing a prenuptial agreement will undermine the romantic foundation of their relationship, making it feel more like a business transaction than a loving partnership.

However, this view overlooks the practical and protective nature of prenups. Rather than signalling distrust, a prenup can be viewed as a proactive measure that fosters open communication about finances – often one of the most challenging aspects of any marriage. In fact, addressing financial concerns early on can strengthen a relationship, ensuring that both parties are clear on expectations.

2. Concerns about fairness

Another reason for the resistance to prenups is the misconception that they are inherently unfair or designed to protect the wealthier partner at the expense of the other. While it’s true that prenups can be used to protect individual assets, they can also ensure fairness for both parties. In Scotland, as long as the terms of the prenup are “fair and reasonable” at the time it is signed, the agreement is likely to be upheld by the courts.

This principle means that a prenup cannot simply be a tool for one partner to hoard assets or leave the other with nothing. Instead, it is an opportunity for both parties to clearly state their wishes and protect themselves financially in the event of a separation. Rather than seeing prenups as a one-sided safeguard, couples should view them as a mutual understanding of financial expectations.

3. Fear of tempting fate

Another emotional barrier to prenuptial agreements is the fear that planning for a potential divorce will somehow make it more likely. Many couples believe that discussing the financial implications of a failed marriage before it even begins will bring bad luck or jinx the relationship. This superstition, though deeply felt, has no bearing on the success of a marriage.

Prenups are not about predicting failure, but about recognising that life is unpredictable. The realities of life, including unexpected changes in career, wealth or personal circumstances, are beyond anyone’s control. A prenuptial agreement is merely a pragmatic way to address those uncertainties.

Changing the narrative

Prenups do not have to be the death knell of romance. They can be empowering, offering security and clarity for both parties. Just as insurance policies protect against unforeseeable events, prenups safeguard both partners’ interests in the face of an unpredictable future. By shifting the narrative from one of fear and distrust to one of mutual respect and protection, couples can view prenuptial agreements in a more positive light.

In a Scottish context, a prenup can allow for significant flexibility, enabling couples to make tailored financial arrangements that suit their unique circumstances. In the absence of a prenup, Scottish law defaults to equal division of matrimonial property, which may not always reflect the nuances of a couple’s financial situation. A prenup gives both partners the freedom to make their own decisions, rather than relying on the courts to do so.

A modern approach to marriage

As Love is Blind has demonstrated, prenuptial agreements remain a sensitive issue, laden with emotional and cultural baggage. However, in the legal landscape of Scotland and the broader UK, prenups serve a clear, functional purpose: they provide a safety net for couples entering marriage, ensuring that both parties’ interests are protected in the event of a separation.

Far from being a sign of distrust, a prenup can foster transparency, encourage open dialogue and empower couples to take control of their financial futures. By understanding the legal framework and dispelling the myths surrounding prenups, couples can embrace this modern tool as a way to build a stronger foundation for their marriage – one that prioritises both love and security.

Written by the Journal team.