Wobbling over divorce? A Us-style deal may save you
It’s the latest US import and lawyers think one could save your marriage. Flic Everett reports on the rise of 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 lawyer up, others aren’t quite so sure they’re making the right decision – or that a painful, protracted separation will end in their favour.
Last weekend, 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. 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 struggles to navigate a split, there is a halfway house – one increasingly popular in the US, which now looks set to head 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 under way.
And while a pre- or post-nup is dry, factual and financial, a reconciliation agreement will include promises, intentions and possible consequences. It deals with matters of the heart as well as the wallet, creating a new framework for a marriage should the couple choose to stay together, with specific conditions attached, so both parties are clear on what would constitute grounds for divorce. These can range from promises to cut off contact with another person following infidelity, or a commitment to spend more time together.
Jane Keir, a partner at Kingsley Napley, the City law firm, is convinced that more British couples need to adopt the idea. She is 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?”
Take, for example, a common “somebody was unfaithful” scenario. “After the dust settles they may think, ‘do I want to end my marriage?’” explains Keir. “But instead of putting up with the status quo or divorcing, they can take some time to consider, reorder 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, says 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 that was 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 it fail. Couples, therefore, have the breathing space to focus on their marriage and make a fresh commitment.
“I put in more of the personal side,” says Keir. “Behavioural commitments, or time you intend to spend together – like, ‘a two-week holiday every summer’. Those won’t be upheld in court [should the divorce 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 post-nuptial 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 £100million fortune from her ex-husband, a City banker turned academic – that the legal profession was obliged to take them seriously.
However, English law already requires a couple to be informed about the use of mediation, 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. Keir says she recently saw a woman who had just discovered her partner’s infidelity. “On the Monday, she was determined to divorce him; by Friday, she was wondering if therapy and reconciliation might be possible,” she says. “There are often parties who get cold feet, who would like to have some time to consider whether they want to divorce.”
And for those who aren’t certain that their partner will keep any promises? “A reconciliation agreement means they can negotiate a good settlement while they’re still feeling magnanimous towards each other,” says Keir. “Then if the worst happens, you’re not in the unknown.”
In the US, the concept is already
‘Often, people need time to consider whether they really want to divorce’
familiar. “They are quite popular,” says Wendy Brooks Crew, of Crew Gentle Law in Birmingham, Alabama. Outwardly, it sounds rather like the contracts that parents often negotiate with teenagers –
“If you revise for your GCSES you can go to Glastonbury” – but it offers far greater benefits, says Brooks Crew.
“In the throes of the divorce, emotions can overtake. This allows people to step back and say, ‘OK, there was wrongdoing. But as long as I’m not going to be further hurt by her cheating, or his drinking, then maybe this is worth trying again’. Some people can get over bad behaviour and some can’t,” she adds. “More often than not, however, reconciliation contracts work.”
Another benefit, she says, is privacy. “A lot of couples don’t want everyone knowing their business. Reconciliation contracts are not used in court until the final settlement. I worked with a very prominent family – it would have been a messy divorce but we drew up an agreement. Seven years on, nobody knows they were ever in trouble. And if they do divorce, things will be easier, because the division of wealth is already agreed. It’s a win-win.”