Sarah Jane Lenihan, Partner at our London Victoria office shares her thoughts on the impact of lockdown one and the potential long-term implications for relationships as we enter the second lockdown.
How will a second lockdown impact relationships
There was little shock felt as lockdown part two was announced by Boris on Saturday (31st October). It had been on the cards for a while and felt inevitable once our European neighbours reported theirs.
For some very little may change, but for others, this further restriction to freedom could be life-changing and have long-term implications for their relationship.
At Stowe, when we first went into lockdown back in March, we saw an initial dip in enquiries before steadily rising to an average increase of 30% during the summer months compared to those last year (with a peak in August of 41%).
As family lawyers, we questioned whether this peak was due to people pausing their original plans to divorce in the early months of the lockdown before picking them back up as restrictions lifted or whether in fact, the pressures of lockdown led to an increase in relationship breakdowns.
As we enter a second lockdown, I do not believe that we will see the initial dip that we saw last time as the way lawyers and family courts work has become a familiar situation. People are now used to accessing services remotely, and ongoing cases will continue.
However, the extra pressure of a second lockdown could push already strained relationships towards separation or divorce.
Surviving the strain of a second lockdown
Has the novelty of working from home, having additional time to pursue hobbies such as yoga or baking that life was too busy to do before worn off?
Will we see the extra strain on parties’ relationship and an increase in separation or will we find that couples have survived this for much longer before and these few weeks will be a breeze?
Our experience from clients is that facing the long-term implications of lockdown: financial difficulty, emotional wellbeing, health worries, differing approaches to the risk of the virus and being unable to socialise, are adding an extra strain on couples’ relationships.
This is backed by research undertaken by Stowe earlier this year which revealed that a lack of personal space topped the list of pressures people felt living with a partner (17%)—closely followed by mental health and financial difficulty (16%).
Other pressures such as work stress (13.5%) and finding a partner irritating (13%) were also common factors.
Isolating in an abusive relationship
Sadly, the impact of a lockdown for those isolated in an abusive relationship can be devasting.
During the first lockdown, tragically, ten women and two children were killed at the hands of their abusive partners.
For those people in abusive relationships, a second lockdown is petrifying with the thought of a further five weeks without being able to escape.
However, for anyone in this situation, please be aware that the government guidance is very clear and household isolation instructions DO NOT apply if you need to leave your home to escape domestic abuse, regardless of what your partner may say.
It became very clear during the last lockdown that resources are severally underfunded, and many urgent calls were made to the government to rectify this.
Help and support are available – you can find a list of resources on the Women’s Aid website and how a family lawyer can help here.
Family lawyers and the courts continue to sit and are fully operational, so if you need support, please do not hesitate to contact one of our specialist family law experts to guide you through this difficult time.
If you or someone you know is in immediate danger, you must contact the police immediately on 999.
If you are finding the second lockdown tough you can access further articles on surviving lockdown here or for recommendations for counsellors and therapists that can offer additional support; please do access our Divorce Directory.
Get in touch
If you would like any advice during the lockdown, please do contact our Client Care Team to speak to one of our specialist divorce lawyers here.
We are offering virtual consultations for anyone needing family law or divorce advice and all clients.
To arrange your consultation, call us on 0330 404 6063, and we will book in an appointment at a time to suit you. More
Sarah Jane Lenihan, Partner at our London Victoria office shares her thoughts on the impact of lockdown one and the potential long-term implications for relationships as we enter the second lockdown.
How do you end a civil partnership? A civil partnership is brought to an end by obtaining a ‘dissolution’ which is similar to a ‘divorce’.
When can I apply to end a civil partnership?
Just like in a divorce, you must have entered into the partnership at least a year before making the application for the dissolution. This is commonly referred to as the ‘one year bar’.
What are the grounds for ending a civil partnership
To start the process, you will need to complete a petition setting out the reasons you consider that the civil partnership has irretrievably broken down.
The facts that can be relied upon to prove that the partnership has broken down are as follows:
Your partner has deserted you for a period for two years;
You and your partner have been separated and have lived apart for two years (it is possible in some circumstances to argue that a couple have lived separately albeit under one roof);
You and your partner have lived apart for five years (unlike with two years separation, your partner will not have to consent to the dissolution proceeding on this basis)
As a matter of good practice, you may also wish to send a copy of the petition to your ex-partner in draft before it is sent to the court.
This is with a view to the content being agreed and to encourage an amicable approach to be adopted from the outset.
What is the process to end a civil partnership?
Once the petition has been agreed and issued by the court, a copy will be sent to the respondent (your ex-partner) together with an acknowledgment of service form.
The respondent then completes the form, to confirm that they have received the dissolution petition and that they will not be defending the petition, before returning it to the court.
It is at this stage that you would be able to make the application for a ‘conditional order’ which is equivalent to the decree nisi which is pronounced in divorce proceedings.
What is the conditional order?
A conditional order is a document which serves as confirmation from the court that you have satisfied the legal requirements to dissolve your civil partnership.
When applying for the conditional order, a statement in support of dissolution must be sent to the court as well. The purpose of that form is to confirm that the content of your petition is still accurate.
Once the application has been made, the court will then send a certificate to you confirming the date upon which the conditional order will be granted at a hearing. This is a public hearing and one which parties do not need to attend.
What is the final order?
After the conditional order has been obtained, you must wait six weeks and one day until you apply for the final stage, which is the ‘final order’.
In divorce proceedings, this would be the ‘decree absolute’. The final order will be the document which dissolves the civil partnership.
Sometimes, it is advisable to hold off from making this application, such as when financial matters are yet to be resolved. You should take advice from your family lawyer about this.
How long does it take to end a civil partnership?
The process for dissolution is largely a paper-based exercise meaning that there is usually no requirement to attend a court hearing.
So long as the proceedings are not contested, the process is straightforward and can take between 4-6 months to conclude.
Defended dissolution proceedings are very costly and as such, are thankfully rare.
How much does it cost?
As the petitioner, you will need to pay the court fee of £550. The costs that you incur in relation to the dissolution can, however, be sought from your ex-partner or an agreement can be reached in relation to a contribution towards the same.
If you instruct a lawyer to help with the dissolution, you will have additional legal costs for their service.
What happens if my partner agrees to end the civil partnership?
If your partner agrees to end the civil partnership, the process will be as above, and it is likely that you will both be able to deal with the process in an amicable and timely fashion.
What happens if my partner does not agree to end the civil partnership?
If you were relying on your partner’s behaviour to obtain the dissolution, then your partner would not need to agree to the divorce proceeding. This is also true if you rely on 5 years of separation or desertion. It is only the 2-year separation rule that requires the consent of the partner.
The only document that the respondent is required to complete and return is the acknowledgment of service form. If they do not cooperate and do this, then alternate methods of service can be looked into, such as having them personally served.
Once service has been effected, the dissolution can progress to the next stage assuming that the partner is not defending the dissolution.
Defended dissolution or divorce proceedings are extremely rare because of the associated costs.
Can I separate from my civil partner without getting a dissolution?
Yes, you can separate without dissolving the partnership. Indeed, some couples choose to separate and then wait for two years so that can be the basis of the petition instead of relying on a fault-based ground (behaviour).
However, as a word of warning, if the finances are dealt with at the point of separation, it is important to have a document known as a separation agreement, drawn up to reflect what assets have been distributed.
This is because the court is not able to make an order (which is a binding and enforceable agreement) until the dissolution proceedings have reached the stage where the conditional order has been made.
It is the conditional order that empowers the court to deal with any financial claims. Whilst a separation agreement is not binding, it would serve as evidence of the agreement reached between the parties and could (by agreement) be transferred into a ‘consent order’ when the parties dissolve the partnership.
What are my financial rights after ending a civil partnership?
It is often the financial matters that are more complicated to resolve. You must take advice in relation to the financial matters when you are dealing with the dissolution of your civil partnership.
Potential claims that arise from the partnership can be from any capital, income and pensions. A solicitor will be able to advise you about your settlement options and negotiate on your behalf.
Each case will be decided on its own circumstances, and that is why it is important to seek professional advice so that the settlement is fair.
In addition, it is also important to deal with the claims at the time of separation as they will otherwise outlive the dissolution. This could result in a claim for assets being made against you by your ex-partner in the future even if you have been separated by formal order.
Even in circumstances where there are no assets to distribute, it is important that the claims are dismissed to prevent any future claims being made if your financial position changes, for example, inheritance.
What happens with arrangements for the children?
Resolving child arrangements is a complex area of family law. The children within the relationship may be foster children, children born from surrogacy (including donor insemination) and/or step-parenting. All of these areas require specialist advice so please consult with a family lawyer.
How can mediation help?
Mediation is often used by separating couples to negotiate with one another with the assistance of an independent and neutral third party; the mediator.
It can offer a more amicable and cost-effective resolution and provides couples with pragmatic guidance and legal information to help them reach their agreements.
You can use the services of a mediator to help you end your civil partnership and to agree on issues including finances, property and children arrangements whilst avoiding potentially lengthy legal negotiations.
Get in touch
If you would like any advice on how to end a civil partnership please do contact our Client Care Team to speak to one of our specialist divorce lawyers here. More
Luisa Williams, CEO & Founder from My Family Psychologist joins us on the blog with her advice on how to tell if you are in a co-dependent relationship.
I can’t live, with or without you. U2’s famous song appears to strike a chord with many of the couples that I have worked with in therapy. The saying ‘can’t live with or without you’ is a struggle faced by many couples.
You can’t help who you fall in love with, but when does a relationship become more than an intense emotional and physical connection and border into the co-dependency zone? Do you know when that line is crossed?
It can be hard to distinguish between a person who is ‘clingy’ and a person who is co-dependent. If you suspect that you, your partner or somebody you know is displaying traits of being co-dependent or that you/they may be in a co-dependent relationship, here are some signs to look out for.
(You don’t need all of them to determine whether you or your partner is co-dependent or whether.)
Ten tips on how to tell if you are in a co-dependent relationship
1. You or your partner may exercise the need for control.
Control helps co-dependents feel safe and secure; and to be honest, this is not specific to them.
We all want to feel like we are in control of situations but there is a difference between being in control of the situation and being a dictator of somebody else’s life which is a violation of somebody else’s boundary.
Sometimes you may not feel like you have control, and that can make you feel like you are being controlled. Co-dependents also need to control those close to them, because they need other people to behave in a certain way to feel okay.
2. There may be addiction issues.
This is not true for all co-dependents, but there may be some form of addiction which generally acts as a means to help them relax or to add a sense of order or purpose to their lives. Whether that be substances, alcohol, cigarettes, working or cleaning, this can help them not feel out of control.
3. You may love the person, but don’t like them.
This may feel like a contradiction in terms, but it is possible to feel love for somebody but not like the things they are doing or how they behave towards you. This can lead to a sense of feeling trapped or unable to leave.
You need to think about whether the positives outweigh the negative. Work on what isn’t going well and decide how you can work on this. Sometimes it will work out and other times, it won’t. What you risk doing when staying with a person whom you love but don’t want to be with, is resenting that person which is not a feeling that is felt lightly.
4. You or your partner may experience low self-esteem.
If you or your partner is experiencing heightened feelings of low self-esteem or feel like you’re are comparing yourself to others, then you may find yourself trying to be comforted or comforting your partner.
Underneath this veil of low esteem, there may be an underlying issue which is causing this feeling. If everything is going well, you won’t feel bad about yourself and the self-esteem issues should not be there.
5. There are poor boundaries in place or a lack of boundaries.
Imagine boundaries as being invisible lines which exist between you and your partner.
Having boundaries is important to establish the values of relationship, but this also includes your feelings, thoughts and needs.
This is where co-dependents can get into trouble as they tend to blur the boundary lines and may expect their boundaries not to be crossed, meanwhile overstepping other people’s boundaries. Sometimes, co-dependants can become defensive as a result of having poor boundaries.
6. There is a lot of ‘people-pleasing’ going on.
Saying ‘no’ causes anxiety to co-dependants, and they will go out of their way to sacrifice their own needs to accommodate others.
If you find it difficult to say no to situations and people and feel responsible for others unhappiness or turmoil, then this is only going to cause issues down the line when eventually it will become too much to handle on your own.
You need to focus on yourself, and if it is impacting your happiness, then you may need to evaluate the situation and not compromise yourself. You may also find little or no satisfaction or happiness in life outside of doing things for the other person.
7. There feels like a constant push and pull when communicating and interacting with each other.
At times, co-dependants have trouble when it comes to communicating their thoughts, feelings or needs to others. This can leave the other person trying to guess what is going on, and it will come as no shock that people are not mind readers.
Often you may be afraid to be truthful because as the old saying goes, ‘The truth hurts.’ You might find yourself pretending to be okay with something to appease the other person or find yourself compromising your own beliefs so that it does not cause upset.
You or your partner may threaten to leave but then change your mind. Communication can become confusing and dishonest when you try to manipulate emotions or feel like you are being manipulated out of fear.
8. There may be anxiety, obsessive or paranoid behaviour within the relationship.
You or your partner may experience thoughts about the relationship or believe that things are happening within the confines of the relationship without any evidence. This is caused by anxieties, fears and dependency about what the relationship means and how it could be destroyed.
There may be fears about infidelity or being hurt by the other. You or your partner may find yourselves questioning whether the relationship is a mistake and may find yourself lapsing into a fantasy about how you would like things to be as opposed to what they are. This is to avoid the pain you may feel in the present and keeps you in a state of denial. They won’t reach out and have trouble receiving. They are in denial of their vulnerability and need for love and intimacy.
9. There may be fears of rejection, abandonment and emotional unavailability.
Co-dependants need people to like them and want to be around them.
They fear that they will be rejected or abandoned by people close to them, and this may stem from childhood attachments styles and previous experience in relationships. Because of the weak boundaries, they fear that they will be judged, rejected, or left.
On the other hand, you may fear being smothered in a relationship and losing your autonomy. You might deny your need for closeness and feel that your partner wants too much of your time; your partner complains that you’re unavailable.
Some people find it hard to be by themselves for long periods of time and require constant reassurance. This trait makes it hard for them to end a relationship, even if that relationship is abusive. There is a real risk of co-dependants feeling trapped or potentially making the other person feel that too.
10. You feel burnout or not do anything you used to enjoy doing
It is natural in a relationship to compromise as long as both parties agree to this. You may feel like you or your partner tend to get their own way with decision making (whether that be music or films to watch). You may find that you don’t do any of the hobbies or things you enjoyed doing before you got into the relationship or feel that you can’t do them anymore.
You may feel obligated to spend all your free time with your partner. You may start to feel worn down or exhausted with the relationship and might tend to agree just so there are no arguments. You may start to neglect other important relationships. This can impact your sense of personal identity and might make you question who you are if you enable this behaviour to continue.
How to change a co-dependent relationship
It is important to reassure you that anyone can become co-dependent and you are not abnormal if this happens to you. It is important that you do not punish yourself or your partner but seek support to get the relationship back on track if you feel that this is the right thing to do moving forward. If you decide to part ways, that is also okay and you should not feel guilty if this is what you decide.
Breaking up isn’t necessarily the best or only solution. To repair a co-dependent relationship, it’s important to set boundaries and find happiness as an individual.
A few things can help in forming a positive, balanced relationship:
People in co-dependent relationships may need to take small steps toward some separation in the relationship. They may need to find a hobby or activity they enjoy outside of the relationship.
A co-dependent person should try to spend time with supportive family members or friends.
The enabler must decide that they are not helping their co-dependent partner by allowing them to make extreme sacrifices.
Get in touch
If you feel like you are or have been in a co-dependent relationship and feel like you may benefit from some support moving forward, then get in touch with My Family Psychologist.
We offer different individual therapies as well as relationship and couples therapies. This could be the first step towards a healthier relationship with yourself and your partner.
Visit the My Family Psychologist website here.
Family law advice
If you would like any family law advice please do contact our Client Care Team to speak to one of our specialist family lawyers here. More
How have relationships coped in lockdown: Over the last few months during the UK lockdown, many relationships have been tested in ways most couples have not experienced before.
Couples have had to navigate their relationship challenges intensified by the lockdown, for example fast-tracking a move in together or being apart for months.
In the early stages of the pandemic, it had also been reported that China had seen a rise in divorce cases, and this naturally left people wondering will divorce rates rise after lockdown?
This was something we spoke about previously on the blog, where Sarah Jane Lenihan, Partner at our London Victoria office discussed how lockdown was unlikely to be a root cause for divorce, and more likely to be a final straw in an already strained relationship.
How have relationships coped in lockdown
Whilst some couples are finding that lockdown is taking its toll on the relationship, many others have felt more united by recent events.
Although it has been a difficult period with many factors causing stress during this time, it is interesting to see how a positive picture has been built overall.
In recent research conducted by Stowe Family Law, we discovered that half of the couples say that lockdown has helped their relationship and that they now feel closer to their partner.
Less than one in ten (9%) say that they have seen any negative effect.
Because of the nature of the lockdown restrictions in the UK, partners living with each other were able to spend more time together and as a result, have grown a better understanding of each other. With many working remotely or on furlough, people have had more time to connect and prioritise quality time together.
In our study, we found that 31% feel that they have had more time to focus on their relationship, and 21% think that that they can understand their partner better now.
Taking relationships in lockdown to the next level
A common trend over recent months and particularly just before the lockdown was officially announced, was for couples to take next steps in their relationship to be together during this time.
This led to partners moving into each other’s homes and in some cases, with other family members or housemates.
Our research also revealed instances where some couples had decided to take their relationship to the next level. This included getting engaged, buying a dog, and one couple who took part in the research had recently celebrated their 40th wedding anniversary.
New pressures from lockdown
Despite the overall positive outcome for couples, people have still experienced a range of pressures during this time.
Many have missed having their own alone time and cite a lack of personal space topping the list of pressures they felt living with a partner during lockdown (17%).
This was closely followed by other concerns, such as mental health and financial difficulty (16%). Other pressures such as work stress (13.5%) and finding a partner irritating (13%) were also common factors.
Get in touch
We understand that not everyone has had a positive experience in their relationship during this time and we are here to support, if you are looking for any legal advice you can give us a call on 0330 404 6090 or request a free call back here. More
Stowe guests: Ways COVID-19 might have changed your relationship
We are joined this week by Megan Han from Your Heartbreak Coach who is a certified Breakup and Divorce Coach as well as a Practitioner of Neuro-Linguistic Programming who joins us to share six surprising ways COVID-19 might have changed your relationship…
Okay, so you expected the rampant regrowth (shout out to all the blondies rocking their unintentional balayage). You dreaded, but anticipated, the monobrow situation. You even humbly conceded defeat when it came to maintaining your acrylics.
But what you *never* expected was the ways lockdown would impact your love life.
We’ve navigated (and are still navigating) a very strange and stressful time. And it’s totally normal that this near-apocalyptic state is making us re-examine our ways of living.
With regular life paused, we’re being challenged to take a step back and analyse how we can make changes to improve our health and happiness.
But it’s more than just realising you want to change careers, go on an adventure or move somewhere new. Your love life is in the spotlight and everything you might have been able to ignore or avoid pre-crisis is glaringly clear now.
… Which is probably why you’ve been giving your significant other the suspicious side-eye recently.
Trust me, you’re not alone.
Here are the things that *might* be going through your mind (and changing in your relationship!) right now.
For couples living apart …
#1. You’ve realised you don’t miss them.
Like, at all. Absence is meant to make the heart grow fonder, but you’re feeling decidedly *shrug* about the distance between you and your partner right now. In fact, you’re in absolutely no rush to return to your significant other.
#2. You’re questioning your compatibility.
Pre-COVID-19, there were plenty of ways to hang out with your partner without actually having to engage with them on a meaningful level. Now that the distractions have disappeared, you’re staring at your partner on your phone screen, and realising that you have very little in common.
#3. You’re finding it hard to connect with them.
Whether they’ve gone MIA and feel more distant than usual, or you’re struggling to find ways to feel close when lockdown demands you stay apart, the end result is the same: You’re just not connecting as deeply with them anymore.
For couples living together …
#1. You’re far more easily irritated by them.
Living in such close quarters all the bloody time has you scowling at their tendency to leave dirty dishes in the sink, filthy socks on the bathroom floor and wet towels on the bed. And while you might have been able to ignore it pre-COVID-19, now it seems like a deal-breaker.
#2. You’re wondering whether they’re really right for you.
There you are, staring up at the ceiling at 3am while your significant other obliviously snores next to you. And you can’t help but wonder: Is this really the person you’re going to spend your life with?
#3. You’re fighting a lot more.
The uncertainty and anxiety COVID-19 has created means your household might be feeling a lot more on edge and tense at the moment. And while pressure might make diamonds, it makes us humans irritable. Which means … arguments. A lot of them. Over the big things, the little things and the totally random things.
… Which is all to say: You feel like a breakup *might* be impending.
How you view your relationship through the lens of lockdown likely depends on the shape it was in before COVID-19.
But before you utter those fateful words, here are three questions to ask yourself:
Are your feelings of discontent permanent? Or have recent events just gotten under your skin?
Can the relationship be saved? If there’s one thing I know, it’s that no relationship is perfect. Can your problems be fixed, or are they unfixable?
Is there a chance you’ll regret your decision? It’s normal to second-guess big decisions, but before you pull the trigger, make sure you’ve thought about question number two and are confident that splitting up is best for you.
Still feel like a breakup could be inevitable?
Get in touch
You don’t have to go through this alone. You can contact Megan on 07912 810 782, or email: email@example.com
Book in for your complimentary 30-minute call to explore how you can transform confusion into clarity for your heart-fuelled future.
Megan Han is a certified Breakup and Divorce Coach as well as a Practitioner of Neuro-Linguistic Programming. She specialises in helping women around the world ditch heartbreak hell and step forward into their dream lives instead.
Family law advice
If you would like any advice on ending a relationship and the family law implications you can find about our legal services here or please do contact our Client Care Team to speak to one of our specialist family lawyers here. More
Support through divorce and separation: Danielle Barbereau, specialist divorce coach and author joins us as part of the Stowe guests programme to offer helpful tips and advice on how to steady yourself if you are having a wobble during a divorce or separation, particularly during the current global pandemic.
If you are going through a painful separation, it is all too easy to feel that you have lost control of your life and that everyone else is calling the shots.
This is especially the case during this COVID-19 pandemic.
To make matters even worse, the fear of the future; the worry about the health and wellbeing of loved ones; money and job worries; the excruciating pain of not seeing your children when they stay with the other parent; and worse, when the other parent does not comply with parenting orders; all contribute to making the breakup incredibly difficult.
Yet, I know that even in the worst times, we can find some relief.
First things first, you need to steady yourself.
These are a few tips, which are the results of many hours spent working with people who are going through painful breakups.
Some may hopefully resonate with you:
As bad as things seem at the moment, these times will pass
Accept where you are. Don’t dwell on what you can’t change. This will make moving forward easier
You are going through life-changing emotions; it’s OK to feel these emotions
Recovery takes time. You cannot just bounce back; you need to go through a process
Be kind to yourself
At the end of each day, write ONE accomplishment from your day you are proud of
Move, get some exercise and fresh air
If you are starting to panic, breathe deeply and repeat 3 times: ‘I accept myself as I am and I can deal with this’. This is an affirmation which will help ground you
Take some control back
Regaining some form of control at this time is crucial, but it may seem impossible to do. Yet, I encourage you to seek small ways of regaining control. This can be achieved by making some changes in your life.
Initially, these changes may be small: eating foods your partner did not like, going to bed at a different time, watching DVDs they would have disliked.
What is important here is to do things that you did not do when they were around. Do something new, however small a step that feels. As time goes on the changes will be bigger and more significant.
Take my client Josie for example:
‘After he left, one day I sat in ‘his’ armchair. Suddenly I saw our living room from a new angle. I was in charge. It felt good.’
This is a good example because not only is it a new step, albeit apparently small, sitting in ‘his’ chair, but is ‘daring’ because it challenges the former status quo. For Josie, it felt like a victory. She began to realise at that point that she would survive and be OK.
Aim at making at least one change a day, every day and observe the sense of achievement you feel.
Challenging yourself is good on several levels. It takes you out of your comfort zone; it also shows you that you are capable of achieving something by yourself, and it makes you feel independent and more in charge of your life.
When your partner goes, your confidence is shattered. It is absolutely vital to work on rebuilding it. Challenging yourself is a way of rebuilding fragile confidence.
Emerging and recovering from pain is a slow process. It doesn’t happen in a tidy straight line. We go through ups and downs, peaks and troughs. Pain and grief, just like love, are personal emotions and no-one reacts exactly in the same way.
All we can do is realise that we are grieving, that the process is running its course.
Remember: this too will pass and you will get better!
Support through divorce and separation
You can contact Danielle on 07860 801693, email: firstname.lastname@example.org or visit: danielleb.co.uk
Legal advice for divorce
If you would like support through divorce and separation, please do contact our Client Care Team to speak to one of our specialist divorce lawyers here. More
The perils of a prenup agreement: While it remains the case that prenuptial and postnuptial agreements are not binding on the parties or the judge upon divorce, the Courts are giving increased weight to nuptial agreements where the recommended formalities are complied with.
This is in line with the judgment in the Supreme Court decision in Radmacher v Granatino  UKSC 42:
‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.
The perils of a prenup agreement
In order to give a nuptial agreement the best chance of being upheld, the following requirements should be met:
The terms of the agreement must be fair and meet the needs of the parties and any dependent children. If this condition is not met, there is little prospect of the agreement being upheld:
Contractual validity – it must be capable of being enforced as a contract;
No evidence of undue influence or duress – the parties must enter into the agreement of their own free will;
Execution – the agreement must be signed or executed as a deed;
Timing – the agreement should be prepared and signed in good time before the wedding/civil partnership. The Law Commission report addressing Qualifying Nuptial Agreements recommends that a prenuptial agreement should be entered into at least 28 days prior to the wedding or civil partnership;
Both parties should disclose full details of their respective financial situations;
Independent legal advice – to be taken by both parties at the time that the agreement was formed to ensure that they fully understand the consequences of the agreement.
There are other considerations that may impact whether a nuptial agreement is upheld, such as evidence of fraud or misrepresentation at the time the agreement was entered into.
However, provided the terms of the agreement are substantially fair and the needs of the parties and the children have been met, the Courts are increasingly willing to uphold and/or give significant weight to nuptial agreements.
The case of S v H
While there are examples of pre-nuptial agreements being upheld, at least in part, where some of the above requirements were not met, the recent case of S v H is a stark reminder that failure to comply with the above formalities, especially the need to ensure that the agreement meets the needs of both parties, can render a prenuptial agreement worthless.
The case of S v H involved a husband (69 years old) and a wife (56 years) who had both been married previously and both had children from their previous relationships.
The wife had significant resources at the time of the marriage whereas the husband had very little.
The parties entered into a prenuptial agreement for them each to retain the assets they held at the outset of their marriage and likewise, any future assets acquired by either one of them during the marriage were not to be shared.
The marriage lasted approximately 6 years. The wife had a net income in excess of £100,000 per annum and she held capital assets of c.£3 million net at the date of the Final Hearing.
During the marriage, the husband received a modest salary through the wife’s business but his main role was to care for the wife’s twin daughters who at the date of the marriage were 11 years old.
The husband incurred significant debts during the marriage after borrowing from friends to discharge a variety of debts and to contribute towards his living costs. Following their separation, the wife sought to uphold the agreement whereas the husband, who had at that point been adjudicated bankrupt, sought financial provision from the wife to meet his housing and income needs.
There was a dispute between the parties over the circumstances that led to them entering into a prenuptial agreement.
The husband’s case was that until he was called to attend the notary’s office to sign the agreement, he was unaware of the wife’s wish for them to enter into a prenuptial agreement.
The wife’s case was that the decision to enter into a prenuptial agreement was a joint decision and was discussed before the arrangements were put in place.
Notwithstanding that the parties intended to live as a family in the UK, the prenuptial agreement was drawn up in the country of which they were both nationals and where the marriage took place.
‘In my judgment, there is no value in the prenuptial agreement. There was no formal process of disclosure, there was no advice given to either party, other than by the notary who prepared the document and at five days before the ceremony…
Even if I held that the agreement was binding, it plainly leaves the husband in a position of real need, when the only way of alleviating that needs being to take funds from the wife to provide for him, contrary to the terms of the prenuptial agreement’. Trial Judge, paragraph 44
The husband was awarded 60% of the wife’s pension fund to provide him with an income stream.
The wife was ordered to make a lump sum payment of £270,000 in order to discharge the husband’s debts which included his outstanding legal fees.
The wife was also ordered to purchase a 3-bedroom property at a cost of £350,000 for the husband to live in until his death or until he no longer needed the home, at which point the property would revert to the wife.
Getting the right legal advice
Clients are often surprised by the amount of work involved in preparing and executing a prenuptial agreement and many assume that it will simply be a matter of signing a standard proforma document.
However, as demonstrated by the outcome of the case of S v H, every effort should be made to comply with the requirements listed above to give the prenuptial agreement the best chance of being upheld and in all cases, the issue of needs and fairness must be addressed.
Read Prenups: can you change them and do they count
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