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Social media prenups: a good idea?

Social media has become a huge presence in modern life. Millions of people around the world access various social sites on a daily basis. It has made sharing information with the world as easy as pressing a button or tapping a screen.

There is, however, a darker side to social media use which is becoming apparent to family law professionals all over the world.

On this blog, I have written about studies claiming Twitter use is linked to divorce, and that excessive use of Facebook can damage relationships. In fact, a third of all divorces in the United States contained the word “Facebook” in 2011.

There are plenty of stories on this subject. A quick Google search will bear that out. But what about after a divorce? Does social media stop being a source of conflict?

The simple answer is no. Following a divorce, people often feel bitter and vindictive. They end up lashing out, and what easier way to do that than through social media? This has led to a rise in the deeply troubling phenomenon of jilted partners posting intimate photographs of their ex online. This has become such a prominent issue that the government is discussing the possibility of criminalising it.

That is not the only way former partners can lash out online. They can spread embarrassing, damaging or even incriminating information in the hopes of causing their ex some pain.

It may seem bleak, but there could be a way to protect yourself from these kinds of attacks: in the US there is now the ‘social media prenup’.

Like a regular prenup, the social media prenup is an agreement by both parties before they get married determining what should happen if the marriage breaks down.

Where the social media prenup differs, is that its focus is entirely on how the future spouses will conduct themselves online in the event of a divorce. Typically these include prohibitions against posting content like intimate photos or anything potentially damaging.

If one of the partners breaks the rules, they have to pay a penalty which the couple decides upon beforehand. The most common penalty is a monetary one: where the offending partner has to pay their ex a certain amount for each violation.

It’s certainly an interesting idea. Misconduct clauses are not unknown in UK prenups. The breakdown of a marriage is a deeply personal matter and should not be splashed all over the internet for the world to see. Creating a mechanism in order to prevent that from happening, with an injunction and agreed damages payable for a breach, is certainly worth considering if it’s likely to be an issue in the event of marital breakdown.

The main issue in the UK, as is the case with the content of all prenups currently, would be its enforceability. My view is generally that if done with legal advice, why not? Argue afterwards.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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