Why a post-lockdown post-nup could SAVE your marriage

When Ayesha Vardag wed her second husband Stephen Bence in a lavish ceremony at Winchester Cathedral in 2014, their first act as a married couple was to cut their wedding cake.

‘It had three tiers — chocolate for part of it, lemon for part of it, all covered with white icing decorated with roses lovingly made by my mother, who had done a special course in confectionery-making,’ says Ayesha.

The second thing they did as a married couple at the wedding reception — again with great public fanfare — was to sign a hefty legal document stating what they would be entitled to if they were to divorce.

‘What we did was sign a pre-nup just before the marriage, then on the day itself, so we could do it in front of our friends, the post-nup,’ says Ayesha.

The reason for this belt-and-braces approach was that Ayesha knew that if a pre-nuptial agreement is followed by a valid post-nuptial agreement, English courts are more likely to hold the parties to its terms.

The post-nup spelt out how the couple’s finances would be distributed and the country in which she and her husband would like the divorce to go through, as well as rules for social media and confidentiality.

‘For us, it was very much a public declaration of our independence and love for each other,’ says Ayesha. ‘We had made a choice to arrange our own financial affairs rather than have them determined by a court.’

As a leading divorce lawyer to the rich and famous, who was herself divorced from her first husband, Ayesha has inside knowledge.

‘I am extremely conscious of what people go through when they have their financial affairs determined by a court,’ she says. ‘It’s very costly, very stressful, very painful. If you sign a post-nuptial agreement, you are doing everything you can to keep your private affairs in the private domain.

‘We have determined in the best of times, when we love and respect each other, what we think is fair.

‘And if the worst happens, we are prepared. We take this out of the drawer and it’s all sorted out very quickly.’

The post-nup, like its older sister the pre-nup, lays out how a couple’s property, assets and income are to be distributed in the event of death or divorce.

The difference is that a post-nup, as the name suggests, can be undertaken at any time after the marriage ceremony.

According to divorce lawyers, a post-nup can be a way to steady a rocky marriage — which is why they are becoming a trend for warring couples as they emerge from lockdown.

‘I have never in all my years of being a divorce lawyer seen it so manically busy,’ says Vanessa Lloyd Platt, of Lloyd Platt & Co, whose firm has been dealing with a 25 per cent increase in divorce inquiries since the first week of lockdown.

‘Peak times for divorce are normally when people come back from a holiday or Christmas. We have never had such a peak at this time of year before.’

She lists the pressures: ‘Being confined to home, home-schooling, being in a competitive relationship — “my work is more important than your work”.

‘For a huge number of couples there has been this horrendous conflict.’ And for some couples, choosing a post-nup rather than launching into a costly divorce can be a marriage-saver.

Vanessa adds that it has a calming effect. ‘If you want to know where you stand, if you want to give your relationship a go but also have a document that you know you can both rely on, so if you do finally decide that’s it, the deal is set in stone’, a post-nup may help, she says.

Adele Pledger, a senior associate at law firm Withers, agrees.

‘For people who want certainty as to what will happen in the event of a divorce, entering into a post-nup may remove that ogre of the unknown and enable them to try to focus on making the relationship work.

‘You can have a situation where a wife doesn’t have anything in her name, her husband has everything and she wants to make the marriage work but is scared about what would happen if they were to divorce.’

Shoring up her position with a post-nup can give her the confidence to focus on the relationship. ‘She knows that if her marriage does go to pot, she will be able to survive financially.’

Both pre-nups and post-nups have grown in popularity since the landmark case Radmacher v Granatino changed the law in 2010.

Nicolas Granatino, a French investment banker who became an Oxford University researcher, had signed a pre-nup agreeing not to make any claims on the fortune of his wife Katrin Radmacher, a German paper company heiress, if they split.

But in their divorce in 2008 he was awarded £5.85 million by a High Court judge. However, the UK Supreme Court ruled that their pre-nuptial agreement was binding, and his divorce settlement was slashed to £1 million. This gave pre-nups legal weight for the first time in UK history. The agreements are now likely to be upheld in British courts provided they have been signed by both parties without duress and alongside legal advice.

This raised awareness of pre-nups has been responsible for the rise of post-nups, says Adele Pledger. ‘People are becoming a bit more open to talking about financial circumstances compared with ten years ago. There is less stigma.’

Alice Wightman, a senior solicitor at Stowe Family Law, says: ‘In the past five years we have had triple the number of enquiries about both pre-nups and post-nups.’

But why would you sign a marriage agreement after you have got married?

The usual scenario, says Alice, is that a husband or wife has been unfaithful and is very regretful — and the other spouse says: ‘I will stay in this marriage but on my terms.’

‘If there is further adultery or the marriage finally doesn’t work out, they make sure they are financially better off.’

This is known as the ‘vengeful post-nup’. The financially weaker party — typically the wife — can tell the richer party that she will get a substantial amount of his money if he should go off with a new lover.

In some cases, an existing pre-nup is ‘upgraded’ to a post-nup after an affair.

‘We would revise the terms of the pre-nuptial agreement to be more favourable to the wounded, poorer party, but also reinforce that by having a post-nuptial agreement as a kind of mirroring document,’ says Alice.

Vanessa Lloyd Platt says: ‘In America, unlike here, quite punitive clauses can be written into post-nuptial agreements. For example, there may be an “infidelity clause” — if you stray, you’ll have to pay me an extra £1 million, £10 million, whatever.

‘A lot of women who have been in very high-profile marriages have found that this is something that keeps their men in line. And in fact there are even more stupid clauses, such as if you force me to have your parents over, then there is a penalty.’

English courts take a different view, however, and revenge clauses are not always enforceable. Vanessa explains: ‘What we tend to do if we are asked to put in a clause that may not be binding under English law or recognised by the courts as one they would enforce, is to call it “severable from the rest”.

‘This means the fact that there is a clause in the post-nuptial agreement that is a bit daft doesn’t render the whole document unenforceable.’

Post-nuptial agreements are mainly used by wealthy people because they have assets they want to protect — yachts, houses, pensions, bank accounts, cars, jewellery.

But they are also popular with middle-class mid-lifers on second marriages who want to ring-fence what they built up before the marriage.

‘You can put in clauses about children as well,’ says Vanessa. ‘For example, provision for school fees, so there will always be provision for children (in the event that you have them).’

The trigger tends to be a forthcoming windfall, says Adele. If someone is set to inherit a substantial amount of money, shares or property, ‘they want to ring-fence that from their spouse in the event that their marriage breaks down.’

But some may wonder why a woman would need to shore up her finances ahead of divorce. Wouldn’t she be given half of everything anyway? Doesn’t English law have an egalitarian attitude to the work of mothers and the job of raising children?

‘The starting point should be 50-50, but no one knows with absolute certainty with any case,’ says Vanessa. ‘You can have ten different judges looking at the same facts and coming up with different decisions.’

Another reason for the increase in post-nups in Britain is the perception that divorce law in this country is greatly disadvantageous to wealthy men.

There have been several very high divorce awards to ex-wives of super-rich tycoons. For example, the former wife of an oil and gas trader was awarded £453 million in 2017 in one of the highest divorce settlements ever agreed by a UK court.

London’s status as the place where ex-wives are looked after financially frightens wealthy foreigners. ‘Wealthy Russians, say, who want to move about, are worried that if they come to this country they will be up against our divorce laws. So we get a lot of those people wanting post-nups before they move here,’ says Vanessa.

But the danger is that a post-nup can itself lead to marital breakdown. ‘Talking about a hypothetical divorce can sometimes bring the idea to the forefront,’ says Adele.

‘It does raise the question: why are you thinking about having to protect this money? What are you planning? Why are you worried? I’ve had some couples who have been papering over the cracks for years — and as soon as the topic of divorce comes up, that paper is soon ripped off.’

But often if you drill down you find that what lies at the heart of a post-nup is the bloodline.

Alice Wightman says: ‘If you receive an inheritance of, say, £100,000, the standard thing you do if you’re married is use it for the benefit of the family — you pay off the mortgage or buy an investment property and it becomes a joint asset.

‘And then if you separate in a year’s time after ten, 20 years of marriage, that is divided equally, pretty much.’

The money the family had guarded for the next generation can be dissipated in a subsequent relationship.

‘I’ve had experience of elderly parents wanting to gift money to children but refusing to do so unless there was a post-nup in place,’ says Adele.

And while the prospect of a sizeable inheritance can smooth potential conflict for a couple, it can ratchet up the tension between in-laws.

‘For example,’ says Adele, ‘if the wife says: “Look darling, Dad wants to gift me £1 million but he’s asked us to sign this agreement just in case anything happens.” The husband has an incentive to agree.

‘But it can cause a bit of awkwardness between father and son-in-law because it suggests a mistrust or lack of faith in the relationship.’

Yet for parents who are mistrustful of their child’s partner, a post-nup can signal peace of mind.

‘[A parent will say] “Look, this money is coming to you and I am not comfortable [with your partner]. You need to get yourself covered,” ’ says Alice. ‘It’s a very emotive issue.’

Leading divorce lawyer Peter Jones agrees that children can come under tremendous pressure from parents, particularly if a family business is at stake.

‘[The parents will say] “We’ve got to have an agreement because I don’t want the family wealth being attacked if something should go wrong. What we don’t want is to suddenly find ourselves with an ex-spouse as a director or, worse, a shareholder.” ’

The cost of a post-nup is not inconsiderable — it usually ranges between £3,000 and £10,000 plus VAT, depending on the assets involved. But for some, it is a price worth paying.

The average cost of divorce in the UK is £14,561, but if property is involved, the cost can increase significantly.

‘We can be talking about protecting family wealth of millions,’ says Adele.

‘I often say to people, you have to see a pre- or post-nup as an insurance policy. You pay a premium for something you hope will never have to be used.

‘But the cost of a post-nup will be far outweighed by your potential exposure on divorce.’