Why Should I have a Postnuptial Agreement?

 

Why should I have a  postnuptial agreement?

 

Draw up a postnuptial agreement if your relationship is undergoing difficulties and there is a possibility of a split in the future. It is worth reviewing your financial situation and drawing up an agreement as to the division of your assets in the event of a separation.

If your relationship is blissful it is worth deciding on  a division of your net worth in the event of a separation in the future as emotions will not be involved and people are able to act far more rationally when they are not in pain or reacting in fear, anxiety or revenge

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Is it worth the paper it is written on? What is it's currency in English law?

Let's go back to 2010 and the  Supreme Court decision in  Radmacher v Gratino

The judgement test  was -

“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications?  If so, in the circumstances as they now are, would it be fair to hold them to their agreement?"

Lady Hale

Pre and post nuptial agreements are not legally binding but...

 

 I have moved my blog over to my new website at www.bastowssolicitors.co.uk

 

The rest of this post can be found here:

 

 Why should I have a postnuptial agreement?

Amber Heard and Johnny Depp - Round Three

So Hollywood's A list couple have settled.

Let's look back.

They married in 2014 with Amber Heard filing for divorce some 15 months later in May 2016 after allegations of domestic abuse.  What baffles is not the short life of their marriage despite it's shocking impact on the world media.  From Johnny Depp’s vast $400 million fortune he was prepared to settle with Amber for $8 million.  That equates to some £533,333.33 per month for every month they were married.  

Amber was looking for more. She did not accept this was sufficient plus she indicated that spousal support should be on the table as well and for Depp to pay her legal fees. 

They have now settled for $7 million... which Amber will donate to charity... The plot thickens...

Almost unheard of to negotiate backwards. What prompted Amber to cave so dramatically? The public fight concerning her domestic abuse allegations removed sympathy from her - she was regarded as a gold digger. She is young and gorgeous but her marketability both as a movie star and as a future spouse to other wealthy gentleman was at risk of plummeting. Maybe she was advised that she was heading into obscurity and public revilement and becoming the next Heather Mills. Maybe emotionally she could no longer cope with victim being made out to be villainess. Maybe she had a better offer on the table and was seeking out a new, far wealthier beau...

What confuses me is that Depp never opted, bearing in mind the complications that money can bring and the vast difference in their wealth, to have a prenup in place. Amber is perfectly successful having appeared in dozens of movies over the years including, Magic Mike XXL, The Danish Girl and the Rum Diary in 2009 (where she met Depp) and she also spent several years as the face of Guess. But Depp owns an island. An actual island.   Amber is probably at the start of her career whereas Johnny at 52, may be asking a lot of us to suspend our disbelief for much longer that he is the charismatic young Captain Jack Sparrow.

As the couple failed to put a prenuptial agreement in place this entitled to Amber to half the money made over the course of the relationship which looks closer to the $30 million mark. Ouch.  

Amber Heard has a lot to be grateful for. Obviously gorgeous, a youthful 30 years old and wealthy enough that she is promising to donate her alleged $7 million divorce settlement to charities including American Civil Liberties Union and Los Angeles Hospital. And the fight is over... well not quite... As reported in the BBC News 

Amber is now accusing Johnny of being a cheap skate. he has paid the $7 million direct to charities and not via her hence saving $7 million in taxes. Sounds sensible to me. Also sounds like Amber is not over this divorce as she wants Johnny to suffer a bigger financial penalty than he was hoping to get away with...
   

In England and Wales it  is widely accepted that prenups are not legally binding as such, but what they are is persuasive. What they are, is a opportunity to make a divorce quicker, cheaper and less painful.  A romance killer? No. It is no different to a will. If you die you want to make sure the people you care about are protected.  It is no different with prenups. No one wishes death or divorce to come a knocking but at least when/if it does then you are prepared.  

Madonna in Court to Force 15 Year Old Son Home

Nobody can have missed the fact that Rocco, Madonna's 15 year old son wants to stay in London and live with his father.  Who can blame him - London the coolest place on the planet for a teenager and... he did live here before.

What people can't grasp is why Madonna is fighting this through the courts. She has the benefit no doubt of the most expensive legal advice. She is highly sophisticated and knows that her son's wishes and feelings will be accorded a major determining factor. Is she just wasting her money and ruining her relationship with her son? What court is going to physically force him to return to New York if he refuses? Indeed he is old enough to have his own legal representation so he does not need to rely on his father to cross swords with his mother.

He has been ordered to return by an American court and he has not done so.  Now it is reported that Madonna is pursuing the fight through the English courts and there is a further hearing in the New York Supreme Court on 5th March.

What has gone wrong? Reading the reports it appears that Madonna is a disciplinarian and Guy is more laid back. The contrast in parenting styles being apparent even when they were together. Madonna enforces a macrobiotic diet - no phones, no TV and anything left on the floor is thrown out. By contrast - Guy is pictured bike riding with Rocco and there are reports Rocco has been seen smoking.

There is also a large section of the press decrying Madonna's parenting skills - she is a dictator and spends all her time working - her children are forced to go on tour with her and she spends no time with them. Rocco left when she confiscated his phone and because she did not spend time with him.

This story sounds familiar.  Lots of teenagers rebel - Madonna included. Lots of teenagers would leave home if they had a more comfortable alternative. I am sure lots of adults would like the alternative of running away to escape their responsibilities and to be allowed to live a less restrictive life and still have their every need taken care of.

There are all sorts of reasons why Madonna could be doing this. Maybe she needs to show Rocco she loves him enough to fight for him.. Maybe she is fearful he will sink into addictions or other self destructive behaviour with a looser leash. Maybe she just needs to be in charge and win everything. Maybe she is devastated and this is the only thing she can think of to get her son back.

What is Guy Ritchie's motive in all this? Why has he not sent Rocco back? Is he just trying to win against Madonna? Or does he believe she is too strict? That she is not there enough? That she is not supporting their son enough? Or not concerned with his happiness enough?

Children act applications are decided on what is in the best interest of the child. Parental acrimony is not in the child's interest. Long term and repeated parental conflict is emotionally damaging - children do less well at school - are less able to have fulfilling relationships and are more anxious and unhappy.  Who wants that for their child?  

This Government would like parents in this situation to mediate - negotiate the matter calmly with a neutral facilitator and to make parenting decisions jointly. Work together to come up with a joint parenting plan. 

If only the emotion could be taken out of these conflicts and both sides could learn to compromise. Easy to say - very difficult to do.


Here's what Rocco needs to remember - you only have one mum. She may not be perfect but she is your mum. Nine months is a long time when you are 15 but focus on getting a better deal from mum for now and set a deadline - if things do not improve - big changes can take place - but with everyone in accord.

Coercive or Controlling Behaviour - Now a Crime

Domestic abuse has now been extended since 29 December 2015 to include coercive or controlling behaviour.

What does that mean?

It means if your actions are adversely affected because someone else causes you emotional harm or - on at least 2 occasions - fear of violence.

Many people claim they are controlled by their partner - for example they cannot go out with their friends, they cannot be late home and they need permission before they can do virtually anything. There is a big difference between compromise in a relationship -discussing what is right for both of you - and being bullied into doing what your partner wants.

Other examples - checking up on your phone, controlling your Facebook account, telling you what to wear, stopping you from drinking, stopping you from working, limiting when you can see your family or friends, controlling your access to money, criticising you endlessly or putting you down in front of others. 

Most people know when someone is abused by their partner - the old joke of being hen pecked or worse that a man's extreme jealously shows that he loves you.

The difficulty is that when people are in an abusive relationship they often normalise the behaviour - they justify it to others and claim it is not that bad. Usually things escalate before victims realise that they have been emotionally abused for a long time.  They have just accepted being bullied in order to have an easier life and through fear of the anger if they disagree.

The key is the effect the behaviour has on the victim. Often this effect is cumulative.

Minister for Preventing Abuse and Exploitation Karen Bradley said:

"Our new coercive or controlling behaviour offence will protect victims who would otherwise be subjected to sustained patterns of abuse that can lead to total control of their lives by the perpetrator. We are sending a clear message that it is wrong to violate the trust of those closest to you and that emotional and controlling abuse will not be tolerated."

This legislation comes at a time when domestic violence referrals are already increasing. The maximum sentence is 5 years. It will be interesting to see if the police are sufficiently trained and resourced to pursue this offence.

How to tell if you are in an abusive relationship? Imagine your partner's reaction if you  rang and said one of the following:

you would be going out with friends and so would be late home,
you planned to go on holiday with a friend,
you had invited your parents for the weekend,
you had changed your passwords on your social media.

If you feel fear  or anxiety at the thought of any of the above then perhaps you should carefully consider whether your relationship needs changing.

Should I stay or should I go now?

The agony of indecision. Not bad enough to leave not good enough to stay. Some people contemplate the decision to leave their partner for many years. Anxiety is at it's height when you do not know what to do. Life is only half lived. You put other things on hold - holidays, work promotions, DIY, hobbies, time with friends - everything is dealt with in a half hearted manner whilst you ponder whether you should end your relationship. You don't know what to do so you do nothing - you start to drift through life and everything becomes mediocre. No joy, no contentment, no pleasure, no hope, no fun. Then perhaps you turn to distractions - an affair, alcohol, gambling, drugs, shopping, food - any addictive habit to give instant satisfaction and relief from the agony of indecision.  Then eventually the decision is made - it's either too late to leave -may as well live out our last years together in semi misery or the misery of indecision becomes so bad you decide leaving is the only way to escape. You want to make the right decision but in the end the decision is made through procrastination.

If you trawl the Internet you will find long lists of what you should consider in order to make the right decision.

Is your partner abusive? If yes - leave.

Can you afford to leave? If no - stay.

Do you love your partner? If yes stay but what if the partner you love is abusive? Leave.

Are you religious? Stay.

Have you both stopped trying? Go to counselling.  

These practical decisions are not helpful.  You know the answers but you are not sure if you are making the right decision.  The only wrong decision is no decision because of the limbo it traps you in. There is a saying - Put up or shut up.  Somehow all such sayings are based on wisdom that is inescapable.

When weighing up any decision in life remember there are three different options.

1. What you want to do

2. What you should do

3. What you must do.

If you live your life through should - you may well stay for the sake of the children. If your should is to be grateful that someone married  you in the first place - you will stay married.

If your must is to avoid disappointing your parents you will stay married. If your must is to be a good catholic you will stay married. 

Confusing  the wants, shoulds and musts is how people get stuck. What if you don't know what you want? You just think you don't know by the way - it is the shoulds and the musts that are getting in the way. 

Here is a simply way to work out exactly what you want.

Imagine you won the lottery - millions and millions  - no matter how rich you are you win more than your total net worth. What would you want to do with the money? Don't think about it - your first instinctive answer is the key - be truthful with yourself - you don't need to impress anyone.

A. Split it with your partner and go your separate ways.

B. Share it with your partner and use it to rebuild your lives together.

C. Hide it from your partner. 

Your first answer will tell you whether you want to divorce or not - and what type of divorce you can expect. Next you simply need to decide whether you are going to do what you want or live by your shoulds and musts.  By the way you can change your musts but it takes effort.

Once you make the decision - live with it. If you decide to give your life together a chance - set  a deadline for things to improve - and put your best effort into improving them. If you decide you cannot leave even though you want to then make your best effort to make the most of the situation - after all it is your life.  Live it the best you can...