Pressure and the postnup

Family Law|February 25th 2016

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.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(12)

  1. Andrew says:

    Indeed. But if you have signed it face up to your responsibility to honour your word.

  2. Luke says:

    ======
    “And never sign on the dotted line unless you’ve fully considered the implications.”
    ======
    .
    I agree with this advice on the potential divorce implications of a post-nuptial agreement, – but the advice is just as important for signing the MARRIAGE certificate itself.
    My advice on the latter for the vast majority of men would be – DON’T !

  3. D says:

    This does make me think the scenario is a perhaps common one, but not as universal as it appears to presented as. Perhaps a one-sided generalisation to prove a point. My understanding that a pre/post nuptial agreement that is unfair should be hard to enforce and may be chucked out at the judges discretion.

    I imagine the scenarios below might be a fairly common as well;-
    netmums.com/coffeehouse/netmums-coffeehouse-archives-528/separation-advice-clinic-748/702834-how-tell-my-husband-im-not-love-anymore.html

  4. JamesB says:

    I agree with Andrew.

    ‘hired help… holiday home… recession a distant memory’, I like you Marilyn, but sometimes I think we live on different planets.

    I’m off to look up what a paramour is.

    With regards to the post, I agree with Andrew.

    With regards to what is fair, it is what they agree between them.

    With regards to what is fair, it is not what the law says, having been involved a lot with the MCA 1973 and a victim and stitched up under it I do not think your approach (of transferring wealth from man to woman under guise of she deserves it) benefits marriage very much.

    My own circumstances were I had to pay a woman from a rich family a lot of money and assets (vast majority) leaving me with very little, as she wasn’t working and the money she had was from a trust fund and she had expensive lawyers and I had none and the law was entirely in her favour as she milked the respective law in terms of income earning capacity need for children and no assets, even though the fact of the matter the opposite was and is true and now I continue to finance her as does her new husband and family and trust fund. At least the children live in comfort. Just glad I saw it coming early and had chance to try again. So many men involved in divorce, perhaps most don’t have that luxury and they don’t have that possibility as happens later in life. Rushing. Need to go now otherwise would tidy this comment up a bit. Hope all enjoy weekend.

  5. JamesB says:

    Oh, I meant to say, there is a saying, if you marry into money, you pay for it. That’s just the way it is I suppose and no point trying to fight that. The rich always tend to screw over the poor. Haven’t seen lawyers do anything about that. Perhaps as they are rich also and side with their own. Saying about rich doing over the poor was from the movie Platoon about 20 years ago but holds for millennium I think. Like the way the college boys didn’t go to Vietnam etc.

  6. JamesB says:

    re : The hired help will have to go.

    Why do women not want to look after the home any more? A rhetorical question.

    Seems the western woman is relatively high maintenance aiming for hired help and holiday homes. I had this with my ex wife. Like when she took the car to garage and ended up paying £1000 for a service, they saw her coming also.

  7. JamesB says:

    I don’t think all women, or indeed all western women, or indeed most western women are like that, but a lot are, perhaps something to do with their education, upbringing and tv, I try to not bring my daughters up like that.

    The ones who are like that I suggest are best avoided. My ex FIL and his wife had a live in help, a Sri Lankan with a Dr husband who earned less than half what she did for cooking and looking after their house for them (ex pats) and they were both retired and lived together.

    I remember a saying about people Kuwait that they can’t even wipe their own backsides, well far too many western people are getting like this which is why perhaps the immigrants are the ones having children in this country.

  8. JamesB says:

    Just the two of them retired and a live in help, I’ll always remember that. Nice if you can get it I suppose, but from a by-gone (colonial, slavery, etc.) day I think. But perhaps I am wrong.

    To be honest, I mixed in those circles for a while, but found the diner parties very boring. I prefer a day out at the rugby or football or a trip to Tenerife to sitting around droning on about education and the empire and value of property and investments and all the haughty laughing nonsense.

    Those dinner parties did my head in. I would prefer a pub lock in. To be honest they were ex pats from Hong Kong, does sound similar to your rich clients in London though. Perhaps there will always be people like that. I had the choice of staying like that and I voted no, twice (with my girlfriend afterwards also) I am not unique either. Among that group they were struggling to get men to marry their entitled daughters. Thus why they were marrying down to people like me I suppose. The men tended to marry moreigners who didn’t have quite the same attitude to entitlement or who were poorer and were wowed by the money (i.e. bought a husband or wife).

    Perhaps the Indian caste system has something in it as I just found the dinner parties and people up their own backsides and talk of skiing safari etc immensely boring. I prefer discussing pre marital sex and fighting and literature rather than all that trying to talk up your lifestyle to similar typr of people, lacking depth to the conversation. What car you drive, what school your kids go to, how much your house is worth etc. I would rather discuss sport or films or books or tv with someone normal than the relative levels of taxation worldwide and how to avoid it. I wouldn’t piss on them if they were on fire, would tax them to death and wouldn’t give them the steam off my urine if it were up to me those tax dodging bollocks talking entitlement a holes.

    To be fair, I don’t think they thought much about me either. I never played their game. Like I said there’s more to life then money. My ex’s new husband takes the money and puts up with it, which is a valid choice, and perhaps I would if she and they weren’t quite so boring.

  9. JamesB says:

    I’m done with sucking up to rich people. Most people do it, I don’t. To be fair some rich people are nice, the problem is quite often they can’t see past protecting their assets and enjoy life and people.

  10. JamesB says:

    Calling their children international logistics management when they work in local supermarket I also found did my head in. They really didn’t like me earning more than their children, they hated it, well bollox to them and their class system we are better off without it. At the end they didn’t like me much either, divorce can do that to people me and ex FIL ended up coming to blows and he called the police with him trying to throw me out of my house, that the police sided with him and my ex was against them. I like to think they don’t fall for such nonsense anymore. That he started something he couldn’t finish says something about him as a man. I don’t think they like me very much well, I don’t care and am over it. Its the same with marriage you take the person or you leave the person. If it were her only we may have had a chance but all the other class nonsense they ruined it. Anyway, as I said, I am over it and have other stuff I need to do now.

    Moral of the story. What Andrew said in a lot less words than I just have on this thread. Just thought the rest of what I just said might help some people, what worried me was going out with a friend last night and the number of people begging on the street. We really do need more understanding and appreciation of each other, and less tax evasion and avoidance, which is why I wrote all that to try and practice what I preach and help towards that. Not that I am a role model, just that others may learn from my experience. Perhaps I write too much perhaps Andrew writes too little. I do find it a bit cathartic though. I need to go now.

    I wrote one long affidavit in my divorce, the judge and barristers and everyone loved it and it helped me. They kept asking me for more and others thought I might go into law. I did help some others with their divorces when they struggled but I found most of the process not worthy of writing anything on as the assets weren’t worth it and if you disagree you lose contact with children and the law meant I got stuffed and the difference between nothing and a little wasn’t worth it, I would rather put the effort elsewhere with a better payback. I found it cheaper to be unrepresented and lose than be represented and draw.

    I always remember the Tory chief whip spending millions, all his money on plebgate and losing. Law can do your head in.

  11. JamesB says:

    Plebgate, worth looking up for people, how lawyers earn money perhaps.

  12. JamesB says:

    Story of my divorce, spending £20k on legal fees arguing over £10k of money. Not the correct values but shows the point. The annoying thing is if you turn up and say “whatever” to the Judge rather than playing the silly game he or she will have a go at you for not paying for a lawyer.

    There is a saying, never go to court, I can understand that point. Is there value in the place, perhaps, but my divorce was a farce, I can see why they don’t allow the public in to see that sort of thing.

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