UK: Postnuptial Agreements – an admission of defeat? 0

A guest article by David Williamson from Coles Solicitors in England.

Divorce can be one of the most traumatic experiences a human being has to go through. Years of love, trust and intimacy all brushed aside in the name of animosity. Of course, some of us, a lucky few, are civil through these proceedings and the process can be mutually beneficial. Unfortunately, this is an all-too-rare example of divorce; as many of us let jealousy, anger or resentment cloud our judgement and let revenge prevent any hope of a peaceful and speedy conclusion.

There is one thing every couple should think long and hard about either before or during marriage as prenuptial or postnuptial agreements can singlehandedly prevent any unnecessary distress during a divorce. However, many who have been married for years, decades even, would probably not have had the opportunity to consider this option before marriage. In fact, in 2010 in the USA, only 3% of couples engaged in a prenuptial agreement, significantly higher than the 1% cited in 2002, however. The fact is, in the light of a romantic Valentine’s Day proposal and a whirlwind engagement, few consider proceedings post separation. It may not be the most romantic of gestures to get down on one knee, present a diamond encrusted engagement ring; then offer up a contract disseminating assets post separation and insist that your spouse- to-be sign on the dotted line.

Until Death do us Part:

It must be maintained, however, that marriage is a contract. The words uttered at the ceremony are a legal contract entered into willingly by both parties and it should (in certain respects at least) be treated as such.

Now, many couples will have bypassed the honeymoon period; having been married for decades. That’s not to say there is no lasting mutual love and respect in the relationship, but as all things eventually do the relationship has evolved. What is left is a life partnership where financial benefits and economic incentives become the order of the day. Therefore, it is imperative to protect these should anything happen!

Perhaps it’s time to consider a postnuptial agreement. Now, many are probably wondering what these are as you may be familiar with a prenup, but what is a postnup? Well to put it simply, a post nuptial agreement is a prenuptial agreement that is agreed upon, post-nuptially – after the marriage ceremony has occurred.

Perhaps you and your partner married when you were much younger. You were in your 20’s and maybe you had substantially less assets back then. Perhaps, since, you have bought a house, several cars, share investments or maybe even joint-own a business. However, the most important circumstances to consider are of course, when children are involved. Here, a postnuptial agreement will disseminate finances, organise visitation privileges and ensure a divorce will not corrupt the best interests of your children.

A fallacy that needs to be dispelled concerning postnuptial and prenuptial agreements is that they are, in principle a financial doctrine. A contract organised by the rich and famous to ensure entrepreneurial ‘gold-digger’s’ do not take advantage of older millionaires. This is, frankly, ridiculous. A postnuptial and prenuptial agreement can be used for a variety of beneficial purposes. For example, who gets the car, which party would be given what contents of any property, and how things may develop considering pets following separation. Even down to frequency of intimacy, adultery and expectations of behaviour can be documented. Fundamentally, whatever is important to people and their relationship can be discussed in a postnuptial agreement. Therefore it’s time the taboo concerning these generally un-romantic contracts was lifted and people began approaching marriage with more sense than the cloudy, romanticised, hyped-up preconceptions many couples fooli
shly begin with these days. Remember, between 40% and 60% of all marriages end in divorce, and the USA can proudly state the highest divorce rate in the world. Moreover, with divorce rates quadrupling in the last forty years and being two and a half times higher than they were twenty years ago it’s clear they are increasing. Also, consider this: in the USA the average marriage lasts around 11 years according to statistics released in 2010.

The conversation does not need to be an awkward one

The benefit of a postnup over a prenup is fundamentally that married couples, by grace of law, should be more stable than engaged couples or those participating in a simple relationship. Therefore, don’t be shy about confronting the elephant in the room. Present the assets each party has invested and discuss how things may be if things take a turn for the worse. A postnuptial agreement is not an admission of defeat, it’s not a sign of the end for you and your spouse and it is certainly not to be treated with any air of suspicion. It is a sensible, modern contract designed to satisfy the vested interested of each party.

Most couples, naturally, assume that never in a million years will divorce be the order of the day. Couples recently engaged or newly married should assume they will be together forever. However, a report released in 2010 stated that 15% of all divorced couples say they regret not drafting a prenup or a postnup, with a further 40% of divorcees stating they would insist on drafting one if they were to ever remarry. Therefore it is foolish not to consider these documents as a legitimate part of marriage as it could save you years of painful divorce proceedings and allow you to quickly start a new, happy life should the worst eventually happen.


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