Civil Fraud Quarterly Round-Up: Q1 2021
As I read the stop press news recently about the possibility Angelina Jolie might be pressing pause on her divorce, given Brad’s reported willingness to address his drinking problem, it got me wondering about whether they were considering a Reconciliation Contract which is a popular post-nup tool in the US.
Coincidentally I have three clients here in England currently considering such a contract. The concept is pretty novel on this side of the pond, but arguably no less effective.
A Reconciliation Contract is a post-nuptial agreement which allows couples to put their marriage back on track whilst at the same time prescribing in advance the terms of a split if the reconciliation fails.
It is more than a stark financial document since it sets the scene on the reasons for a rapprochement and sets out relationship commitments newly given. For example: it could include a promise to curb addictive or adulterous behaviour or a pledge by the couple to work less and give more time to each other. In the event these aspirations are not fulfilled, the practical details of the split will already have been agreed and codified.
They really can allow couples to have a fresh start. They can help parties feel more secure personally, emotionally and financially. They can anchor things, change the mood music, change the financial terms of a marriage or take the sting out of a relationship issue.
However crucially they also protect against the unknowns of the divorce process and help to avoid the acrimony and expense that inevitably arise if divorce does sadly prove the final outcome. The terms of any split would have been agreed at a time when the couple are hopefully being magnanimous and constructive.
It is true that there is a greater track record of couples forging Reconciliation Contracts in the US and of these contracts being upheld in courts there if challenged.
Whilst pre-nups and post-nups are not enforceable as of right in England and Wales, the landmark Supreme Court decision in Radmacher v Granatino 7 years ago, gave a real boost to the enforceability of pre-nups and post-nups on this side of the pond. There is no reason why, in my view a Reconciliation Contract would also not carry legal weight and could not be relied upon in the courts of England and Wales. That is why people are increasingly interested in the concept of Reconciliation Contracts here and lawyers like myself are keen to develop them as a tool.
There is no fixed point at which a Reconciliation Contract can come into play. For some couples it may be such a contract helps to put a marriage back on track before divorce is even properly embarked upon – reconciliation may be the outcome of discussions at home or even formal mediation. For others it may be a way of trying again after a separation, or it may even be a last resort option couples consider in order to press pause on a divorce process, when they decide they want to get off the train and try again to make things work. These things tend to be very relationship specific.
Yes - any tools which help to avoid the enormity and finality of divorce must be a good thing and I am confident that bodies like Resolution, politicians and judges will agree as Reconciliation Contracts grow in popularity.
It is already a legal requirement for divorce lawyers to have ascertained a couple’s willingness to reconcile before going down the formal divorce road. A judge has the power to adjourn divorce proceedings to enable attempts to be made to effect a reconciliation. Many lawyers are also trained mediators and dispute resolution experts to help keep couples away from litigation.
I believe Reconciliation Contracts will in future have their part to play in the mix of alternative options to divorce.
Whilst it is not yet clear whether Brad and Angelina will go the Reconciliation Contract route, there may be merit in other couples exploring the idea.
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