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What Were Jill’s Alternatives To Divorce?

May 9 2020 | Family Law

by Paul Britton

by Paul Britton

Director and Solicitor

In this article

Create a post-nuptial agreement.

The last alternative to divorce Jill and I discussed were post-nuptial agreements.

These types of agreements aren’t suitable for every couple, but they can be used to alleviate some of the stress that is causing a relationship to break down.

For example, if you’ve got a case where money is clearly at the root of your arguments due to an imbalance of earnings, post-nuptial agreements can provide extra security to the financially ‘weaker’ spouse. Sometimes this can balance the tables enough for the marriage to prosper, but only if finances are truly the issue at hand.

A post-nuptial agreement would detail how finances are arranged between Jill and Jack during the rest of the marriage. It can also set out how Jill and Jack wish their assets to be divided between them if they were to later separate or divorce.

I advised Jill, however, that post-nuptial agreements are not binding on the courts. This means that if Jill and Jack later divorce, the terms of the post-nuptial agreements would not override the court’s broad power to decide how to distribute their assets and income.

Instead, when considering an application to settle divorce finances, the court is required to give appropriate weight to a post-nuptial agreement in context of the marriage. A post-nuptial agreement is likely to be upheld if it meets the fairness test set down by the Supreme Court in the case of Radmacher v Granatino [2010].

This option wasn’t suitable for Jill as her differences with Jack extended beyond simple finances.

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