When does a regulator pay costs? The Court of Appeal has spoken
So, as the dust starts to settle following the launch last week of BBC’s new drama series based on the loves and lives of an all-female family of divorce lawyers, we can start to predict where it might go in terms of entanglements between the main players. My money would be pretty safe on Hannah (played by Nicola Walker) and Christie (played by Barry Atsma) picking up where they left off on the eve of her wedding and will the younger sister, Rose (played by Fiona Button), actually marry her fiancé after she was last seen ripping apart her wedding dress following a meeting with her father who, it turns out, she had never actually met as he walked out on the family when she was much too young to remember. Grim portends indeed.
While the amount of time devoted to family law issues in the second episode, which aired last night, was less than in Episode 1, it did highlight the stresses and strains that we as family lawyers see all too often around the signing a prenuptial agreement. The line in last night’s episode of “the prenup is written by the head for when the heart has forgotten it once loved” is very true .Crying out for reform (along with so many other areas of family law), the position concerning the status and effect of prenups is still unclear. Whether such an agreement is upheld is still discretionary but a court will enforce one if each party has entered into it with a full appreciation of its implications unless it would not be fair to hold them to their agreement. Our position is unlike many other European jurisdictions and various states in America which will hold you to the terms of your agreement and which do not get overly caught up in notions of “fairness”.
The British have always been squeamish about signing prenups. Of course, they can alter the balance very significantly they are designed to protect one party’s wealth. It was however, interesting to see last night how, at one point, the wife in waiting offered to sign the prenup as it stood and against Hannah’s advice in order to prove to all that she was not marrying for money or a “gold-digger”. Wise words followed from Hannah that she needed to think about her position in ten or twenty years’ time if she gives up her earning capacity to support and enhance the life of her husband in so many ways. If things go wrong – for whatever reason and it is not hard to get a divorce in this country – you should be provided for fairly, which may still leave you some way from a 50/50 division of the wealth built up during the marriage, but you need to think about it all clearly, calmly and comprehensively well before you sign because the law is moving more and more in favour of upholding these agreements.
Much of course depends upon what the actual prenup says. Many people use them to keep separate and apart their assets where, for example, they feel particularly strongly about protecting resources that may have been inherited or built up before they ever met their other half. Our judges favour adult autonomy.
One of the best ways of diffusing the tension often surrounding the negotiation of a prenup, is to include a review clause which should enable consensual changes to be made if circumstances change, such as the arrival of a child or children. In some cases, the prenup is replaced by the postnup, which is a similar form of contract entered into after the parties marry to change the terms upon which they will part if the marriage breaks down. Should The Split return for a second and subsequent series, and if it is to have anything like the longevity of Casualty, we may well see a postnuptial agreement featuring and even a reconciliation contract (a form of post-nup) featuring in the lives of one or more of the main characters and, quite possibly their children.
If you would like to speak to Jane Keir or any other member of our family team about any of the issues raised in this blog or through storylines featured in The Split, please do not hesitate to get in touch.
You may also be interested in reading our previous blogs with our reflections on the first series of The Split.
Connie Atkinson, a Senior Associate in our family and divorce team, has been one of the legal advisers on the script of The Split, seasons 1 and 2.
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