Should I stay or should I go?

Jul 19, 2018, by Carly James

Every marriage begins with the hope that it will last for life, but as the recent rise of UK divorce rates demonstrates, not all newly-weds will experience happy ever after.  When the sincerity of the wedding vows diminishes during the course of the marriage; perhaps due to a lack of trust or the actions of one spouse against the other, initiating a separation or dissolving the marriage may appear, at first, to be the only solution.  Does this have to be the inevitable consequence rather than the last resort?  Pausing to explore alternatives should always be considered, particularly so when the alternative can help couples to protect themselves should the worst happen whilst giving the marriage a better chance to thrive.

Where financial insecurity on the part of one spouse is key to the marital conflict, a Post-Nuptial Agreement can be a useful tool.  Entered into after marriage, often in contemplation of separation or divorce or as part of that process, these are legal contracts which set out how a couples’ affairs and assets would be settled on divorce.  They can also be entered into by spouses who fully intend to remain together but who wish to agree how they will divide their assets if they do not.  If divorce sadly does prove to be the final outcome, Post-Nuptial Agreements can be instrumental in avoiding acrimonious and expensive litigation.

But, what if, reaching agreement as to how the finances should be handled in the event of a divorce, insufficiently addresses the root of the marital difficulties, thus in itself fails to aid the process of salvaging a deteriorating relationship?

Gaining greater broadcast in the aftermath of the Angelina Jolie and Brad Pitt separation, Reconciliation Agreements may provide couples with a more effective alternative.  Akin to the Post-Nuptial Agreement, inasmuch as they protect against the unknowns of the divorce process, Reconciliation Agreements represent more than a stark financial document.  A novel concept (on this side of the pond, at least), they go beyond the traditional Post-Nuptial Agreement by incorporating a crucial addition: featuring pledges by one or both parties to make behavioural changes that could give the marriage a fighting chance of surviving after all.  Most commonly used when a marriage needs to heal after an incident or a series of incidents, Reconciliation Agreements can include promises to cease addictive, abusive or adulterous behaviour, pledge to spend more time together or treat each other as equals and/or with greater respect.  The act of essentially renewing vows in a nuptial agreement which reflects the updated status of a marriage, seeks to encourage a greater sense of security, both emotionally and financially, laying the groundwork for a more committed, healthy, positive and sustainable reconciliation.  The caveat being that if those personal promises aren’t delivered, then the divorce will go ahead, with the financial terms already agreed.

However, as parties cannot oust the jurisdiction of the matrimonial court to consider their financial position following divorce by virtue of their own agreement, where does that leave parties to the agreement if one spouse wishes to move away from the terms agreed?

Historically, the view of the bench was that it is the court, and not any prior private agreement between the parties, that will determine the appropriate financial provision on divorce when the marriage comes to an end, for that principle is embodied in the legislation.  However, following a growing judicial appreciation of the desire for change, by the turn of the millennium, Judges in England and Wales were prepared to attach more weight to a marital (pre or post-nuptial) agreement as one of the ‘relevant circumstances’ to be taken into account in exercising their discretion under section 25 of the Matrimonial Causes Act 1973, or alternatively as a factor to be treated as ‘conduct which it would be unfair for the court to ignore’.

The Post Nuptial Agreement was particularly susceptible to the new mood of change and the fact that the parties had made their own agreement was considered to be a very important factor in considering what was the just and fair outcome.

The increasing momentum of the Court’s respect for the parties’ individual autonomy has been recognised in a growing raft of case law post millennium.  Provided certain requirements have been complied with (acting as safeguards) terms of Nuptial Agreements are becoming more and more likely to be upheld, harmonising aptly with public policy. Nevertheless, these legal documents are not ironclad and legal advice should be sought to ensure that maximum weight is applied.

So, with divorce rates on the rise again for the first time this decade, can Reconciliation Agreements gain enough traction to buck the growing trend?  Time will only tell, but Reconciliation Agreements certainly appear to represent a legal contract which seeks to treat the problem as well as the symptom and any tool which can help couples avoid the finality of divorce, must be, at least, worthy of consideration.