Should prenuptial agreements include a social media clause?

Pre-nuptial agreements are a legal contract entered into prior to marriage and commonly includes provisions as to how property and assets are to be divided should the marriage breakdown and lead to divorce.

Although considered by some to be unromantic, such agreements can have the following significant benefits:

1. They can protect your separate property and wealth as well as assets likely to be received by way of future inheritance.
2. Define what property is considered marital property.
3. Prevent conflicts and actually save you money if you divorce.
4. Support your estate plan.
5. Protect your interests as well as the interests of any children from a previous relationship if you are marrying or have married or entered into a Civil Partnership for the second or subsequent time.

Over the last 5 years the High Courts in England and Wales have increasingly taken into account the provisions of prenuptial agreements in financial proceedings associated with marital breakdown.

However, in countries such as the USA and Australia, prenuptial agreements have evolved to not only include confidentiality clauses designed to prevent either party from breaking their silence on their marriage (such as reportedly entered into in the case of Mariah Carey and Nick Cannon) but also to include “social media” clauses designed to prevent deliberate acts of public humiliation. This has arisen due to a growth in episodes of “revenge porn” with intimate and often explicit photographs being shared online following the breakdown of a marriage.

In the USA and Australia it is increasingly becoming more common for there to be a social media clause stating, for instance, that each party will agree not to “post, tweet or otherwise share via social media, positive, negative, insulting, embarrassing images or content of the other.” If one of the parties to the agreement breaks the contract after the couples separate then the sanctions are normally monetary in nature.

The question now arises whether similar clauses could be included in a prenuptial agreement here and be enforced by the Courts. So far, examples of the enforcement of such a clause in the UK are nonexistent. However, it is considered that if a properly drafted agreement came before the Court and there was clear evidence of the breach of the “social media clause” it would be difficult for a Court to ignore it. It would therefore not be surprising should prenuptial agreements in this Country evolve to follow the examples set in the USA and Australia to protect each of the parties from deliberate acts of public humiliation. In the meantime it would be considered prudent for the social media clause to be included in a separate agreement in view of the fact that there is currently a commonly held view here that prenuptial agreements should only contain financial clauses and if you do include other matters in the agreement, there is a potential risk that the Court could consider that the non financial clauses render the whole of the agreement void.

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