Family Law

Sir Paul McCartney recently drew gasps of incredulity - and some admiration - when it was revealed he didn't have a prenuptial agreement with his soon to be ex-wife Heather Mills McCartney.

That's because lawyers believe she stands to receive a large chunk of his fortune, which has been estimated at more than $1.5 billion US.

The former Beatle may have dismissed such agreements as unromantic, and may have to pay the price for that, but publicly played out experiences like his may be inspiring others to protect their assets.

"There's more media coverage perhaps of some significant decisions that people pay attention to and say, 'Wait a minute, I don't want that to happen to me, how can I avoid that?,'" said Katherine Cooligan, a lawyer with Borden, Ladner Gervais LLP in Ottawa.

"The other thing is legal costs. You don't want to be spending a lot of money on legal fees. People hear about their friend who spent tens of thousands of dollars getting out of a marriage. And people will say, 'Now wait, I don't want to go through that, let's agree to everything now.'"

Popular in second marriages

Prenups seem to be most popular with couples about to enter their second or third marriage. One reason for this is that a division of the spoils gets complicated when more than one family is involved.

"We see people in second marriages (wanting prenups) because they want to able to crystalize their rights," said Llana Nakonechny, a lawyer at Dickson, MacGregor, Appell LLP in Toronto.

"If they had children from that first marriage and they want to do estate planning for example, to deal with their estate and determine how they're going to provide for their children from their first relationship, because of the treatment of matrimonial property if the second relationship was to break down, they want to protect that property and make sure they can estate plan as opposed to putting it up for possible division with a new spouse."

Another source of demand for these arrangements are people who come into a relationship with a house, she said."And so a lot of people say 'I bought this house myself, I saved for it, I took money out of my [savings] that I'm paying back,'" said Nakonechny.

No guarantee

However, not all prenuptial agreements are ironclad and guaranteed to stand up in court.

"Every contract is subject to scruntiny by a court, so when you say they're legally binding, yes they are, but there are various routes that either party can take to try to have an agreement set aside," said Cooligan.

She said the most common examples are lack of independent legal advice, lack of full financial disclosure and presence of duress, coercion.

"The term the courts use is conscionability. Like the overall fairness or overall conscionability of the agreement and if someone is entering into an agreement that is on its face patently unfair, the chances of that agreement being upheld in the future are pretty low."

So, at the end of the day, who should go after a prenup?

Nakonechny thinks they're a good idea for practically everyone - unless you and your partner are starting out with nothing.

"If the two of you are coming in to the marriage and you're both in more or less the same position. You both have whatever education or training to put you in sort of an equal earnings position and you're both coming with a stereo and maybe a little [savings], you absolutely don't need one," she said, "because to me in those kind of situations anything that the two of you gained together should be shared."

Read it all in The Daily News.