Should women sign post-nups?

Divorce|April 7th 2015

These days couples are encouraged from numerous directions to embark upon a headlong rush towards resolving their differences by agreement. Lawyers, mediators, judges and even government ministers join in the cacophonous entreaties to settle by agreement, with dire warnings of catastrophic consequences if those warnings are not heeded.

In such circumstances it would be no surprise if on occasion parties were to enter into agreements in circumstances when they really should not.

Over the weekend it was reported that Caroline Hopkins, the wife who lost her £2 million divorce claim because she signed a post-nuptial agreement is now advising women against signing such agreements. Is this good advice?

Now, before we go any further, a couple of points.

Firstly, what is a ‘post-nup’? Well, it is actually quite a rare bird: a financial/property agreement between husband and wife entered into after they marry (obviously), but before they separate (after which any such agreement would be referred to (again obviously) as a ‘separation agreement’). Such agreements set out what will happen regarding the couple’s finances in the event that they should separate or divorce and, for better or for worse, our courts are increasingly prepared to give effect to them.

Secondly, before I get accused of bias against husbands, Mrs Hopkins’ advice was directed only towards wives, as they are more likely to be the party in the weaker financial position. However, what follows could equally apply to husbands in such a position.

To answer the question whether women should sign post-nups consideration must surely be given to the motives for entering into one in the first place. Personally, I have always been dubious about this. I’ve never quite understood why anyone would want their spouse to enter into such an agreement if it were not to protect their financial assets.

OK, that may be a little cynical, so let’s look at the next, linked, point: does what is being proposed represent a fair financial/property settlement? If it does not, then the answer is surely obvious: no, the woman should not sign the post-nup.

Clearly, in the Hopkins case Mrs Hopkins’ lawyers did not consider that the post-nup did represent a fair financial/property settlement (a conclusion with which, I suspect, most family lawyers would agree) and hence they advised her against entering into the agreement. The report I read suggests that Mrs Hopkins felt that her lawyers should have gone a step further by advising her to get a second opinion, but I’m not sure what difference that would have made: if she didn’t accept the advice of one expert lawyer, why would she accept it from two?

The other allegation that Mrs Hopkins made was that she was subjected to undue pressure to sign the agreement. She failed to prove this, but one can easily imagine that it does happen quite often that the financially stronger party exerts pressure upon the weaker party to sign an unfavourable agreement. Here, I am of course in full agreement with Mrs Hopkins: women should most definitely not give in to pressure to sign post-nup agreements.

But does all of this mean that women should never sign pre-nups? Well, despite the fact that I am not particularly in favour of them, I could not agree with blanket advice never to sign them. People should generally be encouraged to agree matters, and post-nups have their place. However, I think the real advice should be quite simple: before you sign a post-nup, consult a good lawyer and heed what they say!

The full report of the judgment in Hopkins v Hopkins can be found here.

Photo by  jochemberends via Flickr under a Creative Commons licence 

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  1. Andrew says:

    I said elsewhere and I repeat: if there were costs penalties for being wrong allegations like “undue influence” would not be heard so often. Even a Calderbank system would discourage the have-a-go it-might-work nothing-to-lose attitude to litigation.

  2. Rive Gauche: Smoking bananas and other matters… | Charon QC says:

    […] Bolch on his Family Lore blog: Should women sign post-nups? – Or not, as unsurprisingly advised by the wife in Hopkins v […]

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