Having a divorce wobble? Try the new pre-nup
When it comes to making lifelong promises, the traditional wedding vows are supposed to be enough. But gabbling “for richer, for poorer,” while high on adrenalin, is no guarantee that things won’t go wrong further down the line. And, if they do, these ancient oaths offer nothing to ease the passage to divorce, or rapprochement.
While plenty of warring couples are willing to lawyerup, others aren’t quite so sure they’re making the right decision — or that a painful, protracted separation will end in their favour.
Last month, a source claimed that Angelina Jolie might be having second thoughts about her divorce from Brad Pitt, after his promise to stop drinking — his ‘drunken rage’ at their son, Maddox, was reportedly a key cause of the split.
“We’re all trying our best to heal our family,” the actress said in a recent interview, while the source added, “they haven’t done anything to move [the divorce] forward in several months and no one thinks they are ever going to.”
Other reports, however, have suggested it is going ahead. But while even the A-list struggle to navigate a split, there is a halfwayhouse — one increasingly popular in the US, and which now looks set to head over here.
The ‘reconciliation agreement’ is a more emotionally in depth version of a pre or post-nuptial agreement: a contract detailing how assets and property would be divided between a couple in the event of divorce. But there are key differences.
While a pre or post-nup is signed before or during the marriage, a reconciliation agreement is usually signed when the process of divorce is already underway.
And while a pre or postnup is dry, factual and purely financial, a reconciliation agreement will include promises, intentions and possible consequences.
It deals with matters of the heart — as well as the wallet. It creates a new framework for a marriage should the couple choose to stay together, with specific conditions attached, so both parties are perfectly clear on what would constitute grounds for divorce. These can range from promises to cut off contact with another person after infidelity, or a commitment to spend more time together.
Jane Keir, partner at City law firm Kingsley Napley, is convinced more British couples need to adopt the idea. She is currently working with several clients on drawing up reconciliation agreements. “It’s a recent development,” she says, “and people are thinking, if the alternative is divorce, what have I got to lose?
So, in a common ‘somebody was unfaithful’ scenario, explains Keir, “after the dust settles they may think, ‘do I want to end my marriage?’ But instead of putting up with the status quo or divorcing, they can take some time to consider, re-order their finances, and make agreements, such as ‘never see her again or we will divorce and I’ll get the house in France.’ It’s not a threat, but a statement of what’s likely to happen if the promises aren’t kept.”
One bonus, adds Keir, is that if he or she strays again, a reconciliation agreement “takes the sting out of negotiations if you do get divorced.”
Of course, the courts can’t enforce every spousal promise that was made under tricky circumstances and designed to relieve marital tension. But importantly, like a pre or post-nup, a reconciliation agreement will also set out the terms for the division of assets, should the reconciliation fail. But offering this reassurance, couples then have the breathing space to focus entirely on their marriage; making a new commitment to one another and buying time to save the relationship.
“I put in more of the personal side,” says Keir. “Behavioural commitments, or time you intend to spend together in future — like, ‘two weeks holiday every summer.’ Those won’t be upheld in court [should the divorce eventually continue], but the judge can see that there was an intention to make the marriage work.”
It might all sound rather airy fairy, but pre and postnuptial agreements were once not considered legally significant in the UK.
It was only after a landmark Supreme Court judgment in 2010 — which saw heiress Katrin Radmacher, one of Germany’s richest women, win the right to protect her £100m fortune from her City banker turned academic ex-husband — that the legal profession was obliged to take them seriously.
English law already requires a couple to be informed about the use of mediation, however, as a way to resolve any financial issues before a divorce is granted.
Keir says, “mediation is meant to be a process whereby a couple can come together to have their differences resolved, but it focuses on finding solutions when the decision to end the marriage has already been made.”
This, she explains, is where a reconciliation agreement can help — moving the emphasis from solving a couple’s problems to simply giving them time to take stock.
There are often parties who get cold feet during the process, who would like at least to have some time to consider whether they want to divorce,” she adds.
“A reconciliation agreement means they can negotiate a good settlement while they’re still feeling magnanimous towards each other. Then if the worst happens, you’re not stepping into the unknown.”