How to enforce a prenuptial agreement
While on the surface it seems that Hannah and Nathan are committed to making their marriage work, we quickly learn that Hannah is having an on-going affair with Christie, a partner at Noble & Hale with whom she has a history. At the end of series 1, Hannah and Nathan’s marriage was rocked by the revelation of Nathan’s affair with a woman he met through extra-marital dating site, Indiana Ray. It will be interesting to watch Hannah continue to grapple with issues that normally only feature in the lives of her clients. As well as affairs, the episode was dominated by the consideration of prenuptial agreements (see further below), and it left us with Rose and Nina’s opposing pregnancy reveals and a sense of foreboding that the Noble Hale Defoe merger may not be the easy transition it first appeared to be.
In her professional life, Hannah is busy exercising her calm, measured and empathetic approach with a roster of new clients, including Bishop Tony and Fi Hansen. Fi is a TV personality and part of a celebrity couple with husband, Richie. Fi seeks advice from Hannah regarding her prenup, signed before the marriage some years ago. It is often the role of a family lawyer to review nuptial agreements, either in their draft form before they are signed, or after with a view to updating them if circumstances have changed. Unfortunately, Hannah finds the terms of the prenup to be ‘unethical’ and ‘suffocating’, and she ‘would have advised her not to sign’.
While prenups are not formally legally binding in England & Wales, case law confirms that agreements which are entered into freely, with a full understanding of the implications, are likely to be upheld, unless they are unfair. Fi acknowledges that in her friend’s divorce, the prenup mattered and it has therefore pushed her, like it does with many clients, to seek advice on the agreement she signed to ensure she is protected and provided for. The overarching principle of ‘fairness’ is very important: if Fi’s prenup does not provide her with a ‘fair’ share of the assets in the event of divorce, the court may choose to disregard it entirely.
Hannah’s advice to Fi is to replace the terms of the prenup with a more favourable postnuptial agreement. A postnup works in exactly the same way, except that it is signed at any time during the marriage rather than before. Case law suggests that postnups are even more likely to be enforced than prenups, mainly due to not having been signed under the stress and pressure of looming nuptials.
Hannah also strongly urges Fi to keep a record of Richie’s unreasonable behaviour. Although reform is on the horizon, we unfortunately do still operate under a fault-based divorce system where one party must blame the other for the marriage breakdown by reference to specific examples of their behaviour. Fi refers to Richie’s history of affairs (most recently with the nanny) which are common examples used in divorce petitions. Generally, however, behaviour (or ‘conduct’) is not taken into account in the financial side of divorce, unless it directly and negatively impacts on the parties’ financial circumstances or where it would be inequitable to disregard – essentially it can be relied upon in very exceptional circumstances . Affairs will not be enough to meet the extremely high threshold but the attempted murder of a spouse has been considered to be sufficiently serious to meet the threshold. It is one of the most fact specific issues in divorce cases.
It is not uncommon for clients to want to plan their exit from the marriage carefully before making their intentions known to their partner. This is particularly true if there has been a history of violence in the marriage and they are concerned about how their partner will react. Fi admits that she fears Richie and very convincingly pretends in front of him not to have met Hannah, despite being at her office that very same day. It may also be true for clients who have been married for a long time and have children, as they want to consider how best to extricate themselves from their partner while minimising any disruption for the children. Likewise, where the family’s finances are complex and the client has historically taken a backseat on this front, they may want to get a better idea of what is there before discussing how it will be shared. Hannah poignantly refers to this as a ‘calculated risk’, taking time in order to ‘minimise heartbreak’. The important first step is always to consult a lawyer.
Hannah and Christie’s affair is unlikely to stay a secret for long, particularly after they are seen by Hannah’s assistant solicitor, Maggie, doing more than completing a Form E together in Hannah’s office. This, coupled with Nina’s potential pregnancy and the Fi Hansen case, means there is plenty of drama, both personally and professionally, for the Defoes to contend with in series 2. We are eager to see how it plays out.
If you would like to speak to a member of our family team about any of the issues raised in this blog or through storylines featured in The Split, please contact a member of our team or call us on +44 (0)20 7814 1200. Alternatively, click here to get started online and find out where you stand.
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, series 1 and 2.
Liam is a Legal Assistant in the family and divorce team. He has assisted partners and associates in the Family team to run a range of cases from complex financial remedy litigation to urgent non-molestation matters. He has been responsible for preparing court documents and correspondence; liaising with clients, counsel and experts; dealing with intricate financial disclosure and researching points of law. Liam has regularly attended client meetings, conferences with counsel and court hearings in the work he has undertaken.
Connie is a Senior Associate in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: financial settlements; partnership, company and/or trust assets; international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; pre and post nuptial agreements. Connie is a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.
Connie has been one of the legal advisers on the script of The Split, a BBC drama series .
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