There is a real fascination with postnuptial agreements at the moment. The great recession is now starting to fade into a half-forgotten nightmare and there is an accompanying resurgence in the stock markets. All those couples who might otherwise have divorced but instead stayed together during the lean years when both stock markets and property values were low: are they now starting to think of greener pastures and taking legal advice?
Perhaps – but it may not be a mutual move. One spouse might still be in blissful ignorance, hoping that those bumps in the road all have been smoothed over. With something as a serious as a marriage to hold together, they have may become the proverbial ostrich, hoping that things will still be all right despite signs of trouble.
Relationships break down over time. They don’t just suddenly fracture unless something drastic or violent happens, and that is pretty rare. Much more common is one person gradually drifting away from the other over time, until there is no real relationship left to save. When you reach that stage, going through the motions is no longer enough. The love, affection, sense of humour, desire – everything that made the marriage what it was has gone and won’t be coming back any time soon: especially if a new paramour has entered the picture.
That period between betrayal and discovery might be termed the phoney war. It looks like all is well, but the reality is very different. Somewhere a savvy spouse is making plans.
If they know what they are doing, they won’t hide assets and leave the inevitable trail. That’s not the way to go. For one thing, in 99 out of 100 cases it just won’t work. They will be discovered and the trial Judge, who has all the discretion and powers imaginable, will take against him. Or her.
Trying to conceal assets is the last thing a savvy spouse would do. Instead they talk to their lawyers and take a very different course of action. Let’s paint a picture of events I and my team have seen so many times.
Can a postnup protect family assets?
The conniving partner will suddenly and shockingly announce their unhappiness to the unsuspecting party. Usually but not always the latter is the wife, so let’s assume that is so in this case.
The husband will make it clear he can’t take any more of her. She doesn’t understand him. She’s not supportive. She doesn’t care about him anymore, wrapped up as she is in the children. He wants out – unless she changes her behaviour. The pressure on the wife can seem immense, desperate as she may be to save her marriage and continually told the problems are all her fault.
The house will have to go in the divorce the husband announces, even though it might be GCSE year and A level year for the children and the disruption would be appalling for the whole family. The wife will have to downsize and say goodbye to the hired help. She may have to go to work part time or even full time to increase the family budget. The holiday home will have to be sold to pay for them both to have two homes. Their life together will be over and the children’s lives will be changed forever too – and it’s all her fault!
What happens if I sign a postnup?
Unless…he will give the marriage another go if she signs a postnup. He produces it. He’s had a friend who is a lawyer draw it up. Not a divorce lawyer, just a friend who is a lawyer. Take a look he says, and if she signs he will give the marriage another shot. Each of them will then have certainty he insists, so if the marriage does end there will be no messy legal proceedings.
Just what is a postnuptial agreement? It is essentially the same as a prenuptial agreement except it is, as the name suggests, signed after rather than before the wedding. It lists the couple’s assets and defines who will get what in the event of a divorce.
Effectively, the husband explains, the couple are agreeing there and then to have amicable divorce – but one that will hopefully never take place. As long as the wife’s behaviour improves of course!
All she has to do is sign, he declares, and everything will go back to normal. Otherwise he’ll be out the door, because things cannot stay the same.
The process might take a few weeks or months but eventually, worn down by stress, worry and desperation, the wife will sign. Her solicitor (she will need one) will tell her in writing not to sign, but her husband won’t budge. She has no choice. She must think of all her family. She wants to keep her husband. So she signs.
I signed a postnup, is it final?
After a decent interval, maybe six months, he then announces that things still aren’t working and he now wants a divorce. He tells her that he intends to implement the postnup in full and the unpleasant realities of the situation start to dawn on the wife. She realises she has been fooled. He had no need to squirrel away his assets: he’s built a legal wall around the choicest assets and she will now only receive fraction of what she would have been due.
Her lawyers will say “we told you not to do it!”
But now it’s too late. His divorce lawyers, some of the best around, suddenly emerge from the shadows. It’s all her fault. She signed it. She was advised by her own solicitors in writing not to sign it yet she went ahead and did just that. More fool her.
As I recently wrote in the Financial Times to a woman at the very beginning of what I suspected was exactly this process, tear it up. Or you could end up like a certain Mrs Hopkins, whose story was featured in the Daily Telegraph.
Beware the savvy spouse! And never sign on the dotted line unless you’ve fully considered the implications.