Would you sign a post-nuptial agreement?

You've said your vows, done the speeches and just cut the cake. Now only one thing remains ... to divide your assets

Editor's Note: Some names have been changed.

Ayesha Vardag's second wedding in 2014 was a lavish affair. The ceremony took place in Winchester Cathedral, she wore a long scarlet gown and her huge diamond and peridot engagement ring was accessorised with a tiara bought in Istanbul.

At the reception at her home, 300 guests drank champagne and ate tikka, baklava and scones. In a giant Arabian tent by the river, they danced until the sun came up.

Only one detail jarred. Just before they cut their rose-adorned cake, Ayesha, now 48, and her new husband Stephen Bence ceremoniously signed a legal document. On closer inspection, it turned out that the newly-weds had just put their names to a post-nup, or post-nuptial agreement - a contract outlining exactly how in the event of a divorce they would divide their considerable joint estates.

Could any gesture be more unromantic? "Quite the opposite, signing the post-nup was a way of celebrating our union," insists Ayesha, founder of family law firm Vardags, which has brokered many of the biggest-money divorce cases of the past decade.

"It was in line with mine and Stephen's values. We wanted to make a statement: we are two independent beings managing our lives. If anything goes wrong with our marriage, we will make provision for each other. We are not handing over control to the courts."

Over the years, Ayesha - herself the survivor of an acrimonious divorce - and Stephen, also on his second marriage, have witnessed the heartbreak of other couples.

Many of them once adored each other but end up unable even to look at each other in court, as lawyers argue about every detail of their lives from who should have the antique vase to custody of their Pomeranian puppy.

"I don't think people realise just how traumatic it is to go through the courts, or have your destiny determined by a judge," says Ayesha.

"It's not just the prospect of being cross-examined, but of being terribly misunderstood by a judge or misrepresented by a lawyer who hasn't put across the reality of your life, even when you spent a ton of money on your legal team."

In essence, post-nups are identical to pre-nups, only instead of being drawn up before the marriage, a post-nup is agreed upon afterwards - immediately afterwards, in the case of Ayesha and Stephen. Far more commonly, a post-nup is signed years later, for example when the financial circumstances of one partner changes dramatically. And they are becoming particularly popular in the UK.

"The British have always thought of pre-nup as a dirty word - we don't like to think of divorce when we are starting out," says divorce lawyer Vanessa Lloyd Platt. But in recent years, lawyers say the number of British clients taking out post-nups has soared, thanks in part to their popularity with celebrities.

Cooling-down measure

Last year, Jay Z and Beyonc�� allegedly drafted a post-nup to divide up their rumoured $1 billion assets. In 2009, golfer Tiger Woods and his then-wife Elin Nordegren signed post-nups after he was unfaithful, with her reportedly promised $5 million to stay in the marriage (it still failed).

Rupert Murdoch's 2013 divorce from Wendi Deng was said to have been resolved "amicably" with the pair even hugging each other in court, thanks to two pre-nups and two post-nups agreeing in advance that he would receive their Californian estate and she the Manhattan penthouse.

Drawing up a post-nup may sound like an act of pessimism, but according to Lloyd Platt such agreements can actually save marriages, especially ones where partners war over finances.

"We often suggest them to couples who come to us in crisis when we think the relationship has a hope of being saved," she says.

"It can be a fantastic cooling-down measure that gives the couple breathing space. Knowing exactly what would happen if they divorced helps them relax - the certainty that, if worst came to worst, at least they wouldn't have to go through months of wrangling in a divorce court takes the pressure off. Often we find they stop arguing and live on quite happily."

Ayesha also says she has pointed several warring clients towards post-nups, with positive results. "A husband once came to me saying his wife had been unfaithful. She was sorry, he loved her and wanted to try and keep it going, not least because they had children.

"Still, he said he saw no other way but divorce because he was conscious his business was about to make lots of money and he didn't want to build up his fortune in case she ended up walking away with it.

"We had them draw up a deal saying that if they did divorce, she'd be entitled to no part in future proceeds from the business, and it worked really well. They're still together."

Jacqui, a 55-year-old entrepreneur from Hampshire, says she and her husband drew up a post-nup because, "I wanted to acquire a company and he didn't like the idea at all. We were already rowing and he was worried we'd split, the business would fail and he'd be lumbered with the debt. We did a post-nup stating I'd take responsibility for all of its future liabilities and he instantly calmed down and things became much better."

Concerns over post-nups

But not all divorce lawyers believe post-nups are marriage-savers.

"I am very suspicious of post-nups," says divorce lawyer Marilyn Stowe of Stowe Family Law. "You won't be asked to sign one unless it is in the other person's interest to do so. If you are asked, you should immediately be on your guard and take legal advice."

Generally speaking, judges can set even greater store by post-nups than pre-nups, taking the view that the former might have been signed when you were starry-eyed and gullible, but the latter will have been agreed by someone with several years of marriage behind them, who's far more cynical.

But Stowe disagrees with this argument, saying the financially weaker party can be coerced into signing post-nups in a desperate attempt to save their marriage.

"You can't underestimate the emotional pressure people are under when they are facing the end of a marriage. If they are presented with a document that they hope might save it, then they will sign, even if the terms are unfair. Post-nups can be used as a very unpleasant threat: 'Unless you sign this, I'm leaving you'."

Stowe continues, "I make it very clear to someone who is presented with a post-nup that they should be brave and strong and not give in to pressure, but unfortunately some people don't take your advice." Two years ago, William Hopkins, whose property fortune was estimated at 38 million, paid his ex-wife Caroline Hopkins a 200,000 divorce settlement (along with two small properties and a car).

She'd agreed to the sum in a post-nup, which she says she signed - despite lawyers strongly advising her that it was too low - because she wanted to keep on good terms with her husband for the sake of their son. After the divorce, Mrs Hopkins demanded 2 million, claiming she had been 'bullied' into signing the post-nup, an argument that was dismissed by a judge.

Another divorcee, Mona, deeply regrets the post-nup she drew up with her ex-husband. "We'd been arguing and had separated several times - he presented me with this document when I was very low and prepared to sign anything," she says.

"Lawyers told me the settlement he was promising was too low, but I still thought it was worth it because it might help us stay friends if we did divorce and save me loads in legal fees. After the divorce, I found out he had been having even more affairs than I knew about and realised I could have been entitled to a lot more money from him. But there was nothing I could do about it."

Mutual respect

However, not all post-nups signal a doomed marriage. Lloyd Platt says that they're often agreed to by couples on second or third marriages, who want to make sure that their assets will go to their children from previous marriages, rather than being allocated by a judge to their ex-spouse.

Ultimately, however, Ayesha thinks any couple overhauling their finances should consider a post-nup while they "still respect and value each other's contributions", rather than waiting for the worst of times.

"People say: 'Isn't that terribly unromantic?' But that's like saying 'Isn't making a will morbid?' You have to be practical. More than 40 per cent of marriages end in divorce and you just can't predict what life will throw at you.

"I compare it to taking out home insurance in case you have a fire. You hope your house won't burn down, but you'd be mad not to protect yourself from that possibility."

How to plan a post-nup

Advice from divorce lawyer Vanessa Lloyd Platt

Find the right moment to broach the subject with your spouse, and choose your words carefully. You could try saying something like, 'I've been looking at my will, and it's made me think if we were ever so unlucky as to split up, I'd like to know you never have money worries.'

Be sure to choose a solicitor with a track record in post-nups, as they remain relatively uncommon.

Consult a good accountant as well as a lawyer, as the tax implications of dividing assets can be huge.

Even if a post-nup is expensive to draft, don't rule one out. It could help you avoid even heftier legal fees in the future.

(China Daily 02/11/2017 page21)