Jo’s comments were published in Tatler, 27 June 2023, and can be found here.
Why the wealthy can’t get enough of a post-nup
Post-nuptial agreements are on the rise, say the experts, and it doesn’t necessarily spell doom for romance
According to divorce lawyers, the wealthy are requesting post-nuptial agreements more than ever. Claire Blakemore, partner in Withers’ family law team and Managing Partner of the London office said both pre-nups and post-nups on are on the rise. ‘While pre-nups remain more popular, I have found in my practice that a growing number of clients are seeking a post-nup to help manage their financial affairs when situations change.’ Blakemore says that they are often signed when people move to this country or when parents are undertaking succession planning and want to make provision for an adult child who may already be married and they’d like the protection of them having a post-nup. ‘I think that people understand that post-nups don’t automatically spell doom for romance, but are just a sensible financial planning tool,’ she adds.
Post-nuptial agreements (or post-nups) are private documents, so while there aren’t any official statistics, the experts say the recent increase probably has something to do with the fact that nuptial agreements get a lot more publicity these days. Bradley Williams, Director at Family Law in Partnership, tells Tatler that ‘provided they are done properly, post-nups will likely be upheld on a divorce.’
So, how exactly does a post-nup differ from a pre-nuptial agreement (pre-nup)? Jo Carr-West, Partner at Hunters Law says, ‘The only difference between pre-nups and post-nups is one of timing – whether the agreement is signed before or after the marriage takes place. In the past, prior to the Supreme Court’s decision in Radmacher v Granatino in 2010, post-nuptial agreements had more weight, but there is now no difference in the legal status of pre-nups and post-nups.’ Both serve the same purpose, as Blakemore adds, ‘which is to set out how the family’s financial resources should be divided on separation or divorce.’
Carr-West tells us that there’s generally no need to have both but in some cases, it should be considered. ‘The first is where the pre-nup was signed very shortly before the marriage, as this could suggest that the parties (or one of them) were under undue pressure to sign the agreement so that the wedding could go ahead, which could undermine the agreement. Signing a post-nup confirming the terms of the pre-nup after the marriage has taken place would help evidence that the parties chose freely to enter into the agreement.’
Carr-West also adds that post-nups are also a good idea for those in which circumstances have changed significantly since the pre-nup. ‘Examples might include where one party has given up a successful career to become a homemaker or due to serious illness, or if the parties’ asset base looks very different to what was anticipated at the time of the pre-nup. A relatively recent agreement made in the context of the parties’ actual financial circumstances is more likely to be upheld than an old agreement made in very different circumstances.’
Emily Brand, Partner and Head of the Family Team at Boodle Hatfield says: ‘The reasons for a post nup tend to be very personal and fact specific. Often they can be used to protect an inheritance or an unexpected windfall. Sometimes the couple will hope that a post nup will mean that a divorce can be avoided, or as a way of offering reassurance to one party if there have been difficulties in the marriage.’
Blakemore says couples may turn to a post-nup when there’s a financial change. ‘For instance, an inheritance or a valuation of a business that is unexpectedly large and changes the financial dynamic within the relationship.’ While, for others, a post-nup may be a sign that a marriage is heading into tricky waters. ‘In my experience a post-nup is either a pre-cursor to divorce,’ says Williams, ‘or it is proposed because one of the parties is about to receive wealth as part of a wider inheritance planning review.’
Carr-West says she often sees post-nups happening ‘as part of a reconciliation after a period of difficulty in the relationship,’ She explains: ‘For the weaker financial party, it can be an opportunity to ensure that they will be well-provided for if the attempted reconciliation fails. For both parties, the possibility of the marriage ending will have become very real, and a desire for any future separation to be managed as cleanly as possible may be a motivation for setting out clearly what should happen in that event.’
So, if someone is thinking about speaking to their partner about a post-nap, how exactly should this be approached? ‘Number one tip is to start the conversation as soon as possible, says Williams. ‘The conversations need to be handled delicately and this is made much more difficult if one party feels under time pressure to agree. Negotiating a post-nup can often be more difficult than negotiating a pre-nup because the parties are already married. If one party does not want to sign, there is often very little the other party can do, apart from issuing divorce proceedings,’ Williams adds.
‘This is not a topic you should raise after a heated argument,’ advises Brand. ‘It’s much better to approach the subject when sitting down with a trusted advisor or in the context of wider wealth and succession planning, so the context is neutral, rather than combative,’ she adds.
Blakemore agrees. ‘Ideally, an agreement like a post-nup would be dealt with in advance of marriage (i.e. as a pre-nup), but if that isn’t the case or circumstances have changed then it is best to be straightforward. Your first concern may be to avoid upsetting your partner but being straightforward is always the kindest approach. I think the area to be wary of is that the other person does not think of it as a precursor to divorce.’
She adds: ‘This can be harder with post-nups, as the obvious question from the other person is ‘why now?’ Talking about it in the context of a change of circumstance can be helpful, or in terms of trying to avoid mistakes that others have made. If you have children, you could talk about it in the context of how you would want to minimise areas of conflict to reduce any impact on them, and also save money to enable you both to be in a position to provide for the children. You insure against burglary not assuming that bad things are going to happen, but to make things as painless as possible if they do – post-nups are the same.’
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