Reflections on The Split - S2, E1: The Defoes are back – affairs, prenups and pregnancies
Richie’s refusal to leave the marital home leads Hannah to prepare an application for a non-molestation order. At a round table meeting attended by the couple and their respective legal teams, Hannah explains that, if Richie doesn’t agree to move out, she will attend court tomorrow to seek such an order. In response, Richie agrees to move into a hotel.
Non-molestation orders are used to protect a party from violence, harassment and threats. A non-molestation order can include a “zonal” element, preventing the alleged abuser from entering a defined area, but it is also possible to apply for a related order, an occupation order, which excludes them from the marital home. In cases where the applicant is concerned that pre-warning the alleged abuser of their intentions will risk their or their child’s safety, it is possible to make an application for these orders without prior warning to the alleged abuser, and without them being present at the first court hearing. Once the protective order is in place, however, they will have the opportunity to argue against it at a later hearing. Alternatively, in cases such as Fi’s, the threat of such an application being made beforehand can be sufficient to secure the alleged abuser’s agreement to move out voluntarily and/or to provide undertakings (legally binding promises to the court) not to abuse or harass their partner. This is particularly effective when the alleged abuser wishes to avoid the allegations against them being aired in court due to concerns over publicity, as would clearly be a factor in Richie’s case. Although family court proceedings are usually heard in private, it remains possible for members of the press to attend and in some cases report on the hearings, so for those in the public eye like Richie and Fi, keeping matters out of court remains a priority.
Episode 3 also told the story of Will, a troubled young man who had broken out of rehab to marry a fellow patient and his now husband, Jordan. Will’s infuriated mother brought the couple to see Hannah, demanding an annulment. An annulment, known legally as a declaration of nullity, is a court finding that the parties are not legally married because their marriage is invalid. This can either be on the basis that it is void (meaning there was never a valid marriage, such as if either party is under the age of 16) or voidable (meaning that the marriage is valid up until the point that a decree of nullity is made). In Will’s case, his mother is seeking to argue that he did not have capacity to enter into the marriage as he had been sectioned under the Mental Health Act at the time, although Hannah notes that the section had actually expired before the wedding took place. In any event, the question of capacity to marry is a complex one (see our blog on the topic here) and being held under a section would not automatically mean that an individual does not have capacity to marry.
However, it quickly becomes clear that his mother’s concerns are financial in nature as Will is heir to a substantial fortune, which she wishes to protect from any claim by Jordan. Hannah notes that, rather than seeking to end their relationship, this concern can be allayed by the execution of a post-nuptial agreement. This is akin to a pre-nuptial agreement, but is executed post-marriage. As with a pre-nuptial agreement, a post-nuptial agreement would not be automatically legally binding, but would be upheld by a judge if considered fair in all the circumstances of the case. Considerations would include whether Will’s husband would be left in a predicament of real need were the agreement upheld, and whether he was placed under duress to sign it.
Parents wishing to exclude any financial claims by their children’s partners often forget these important factors – an agreement that leaves the financially weaker spouse destitute, or which is entered into under pressure or threat as to the consequences of refusal is likely not to be worth the paper it is written on. Respectful and open discussions about their motives for asking that an agreement be signed, and clear assurances that sensible provision will be made for them, are far more likely to result in the individual in question freely agreeing to enter into the agreement, and the agreement itself being upheld by the courts. Parents in this position must also keep in mind that, in the event that their child and/or their partner refuse to enter into such an agreement, they cannot force them to do so. Likewise, casting aspersions as to the financially weaker party’s motives for entering into the marriage is unlikely to result in them being keen to assist their spouse’s parent.
In Will’s case, his mother eventually secures an alternative resolution, when it transpires at the end of the episode that she has “paid off” Jordan with a sizeable payment from the family trust fund in exchange for him admitting that he was under the influence of drugs at the time of the marriage, and so facilitating the annulment she seeks. The irony of this, from a family lawyer’s perspective, is that in doing so, Jordan may well have received a far greater settlement than he would, had the marriage remained intact and ultimately ended in divorce, even if a post-nuptial agreement had not been entered into.
Assets held by trusts are particularly difficult to claim against upon divorce and, since English law does not provide for forced heirship, if Will had not received his inheritance at the time of divorce, the prospective inheritance would have little relevance to any financial proceedings in a divorce. Likewise, any inherited assets he had already received would be ring-fenced, and only available for distribution to Jordan to the extent needed to meet his needs if they could not be satisfied from any matrimonial assets or his own non-matrimonial assets. In seeking to protect the family finances from Will’s husband, his mother may therefore unwittingly have cost her son more than just his relationship.
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. Also, Cate recently co-authored a blog on pre-nuptial agreements for those with capacity issues with Sameena Munir from our private client department. That blog can be seen here.
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.
Cate Maguire is an associate in the Family Team. She advises clients on matters including divorce and civil partnership dissolution, associated financial issues and issues surrounding children. She has particular expertise in complex jurisdictional issues and financial matters. She has a clear understanding of the particular issues facing international families. She also has a wealth of experience in dealing with complex trust and corporate structures and issues of company values, both in relation to domestic and cross-jurisdictional entities.
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