Why is getting a post-nuptial agreement seen as a sign of a shaky marriage? Read the advice of our resident sage Maddy Phillipps, and email dearmaddy@tvnz.co.nz for some help with your own problems.
DEAR MADDY: I didn't get a pre-nuptial agreement before I married my husband but now, after many years of building my career, I am considering a post-nuptial agreement. My husband and I have a happy marriage with children, but I’ve seen before how even a great relationship can end and women can end up financially struggling. Increasingly I just think, you never know what could happen! My husband isn’t bothered by the idea of a post-nup at all. We would like an agreement that ensures that, in the unlikely event of a divorce, we both get a fair deal. But every time I mention this to friends and family members in New Zealand, they see it as a hostile decision – like a lack of faith in the marriage, even though it’s not. What's your advice?
Tia
MADDY WRITES: Tia, I should say at the outset that I don’t do relationship property law, so the advice that follows is not the legal kind. Relevantly, though, a big reason why I don’t touch relationship property with a bargepole is because it’s just. So. Harrowing. That might sound weird coming from a criminal lawyer, but honestly, negotiating relationship property settlements tends to be completely emotionally crushing. You’re dealing with disputes about the most intimate interpersonal foundations of clients’ lives, so emotions run understandably high. Unfortunately, you’re also working within an adversarial legal system – a mass of statute and case law at best indifferent to matters of the heart. This setup is practically custom-designed to exacerbate clients’ already-significant post-split distress, so no matter how “good” the ultimate outcome in practical terms, everyone walks away feeling like they’ve lost.
So, it’s a harsh but true reality of marriage that the process of negotiating (or, god forbid, litigating) relationship property division from scratch after a divorce is horrible for all involved (well, except the lawyers’ bank accounts). And as you point out, another uncomfortable truth about marriage is that the future is never 100 percent certain. Theoretically, even the best spouse in the world could experience a sudden mid-life crisis requiring them to fly to the Amazon tomorrow to partake in culturally-appropriative ayahuasca ceremonies, and shack up with a 21-year-old hippie backpacker called Venus. Pre-nups/post-nups/contracting out agreements/whatever you want to call them recognise these twin truths: divorces do happen, and they’re a hell of a lot easier to deal with if you’ve pre-agreed on how to divvy up the house, the car, the espresso machine, and the resolutely unused powerlifting rack. Basically, the idea is to have some difficult discussions now, while you still love each other, to avoid utterly soul-crushing arguments later, when you don’t.
Considering all this, Tia, is your keenness to get some legal advice about a post-nup indeed an act of hostility, or a sign of lack of faith in the marriage, as your family and friends claim? Look, I’m sure they’re delightful, erudite, venerable pillars of the community, but on this particular point I think they are, as the Courts like to say, plainly wrong. By considering a post-nup, you and your husband are showing that you care about each other’s feelings and material security even in a theoretical future where the relationship has irreparably soured – and what could be more loving, and less hostile, than that?
As for openly discussing a post-nup signalling a lack of faith in the marriage, underlying this contention is the common fear that talking about divorce will somehow make it more likely to happen. I see this fear as a sign of insecurity in a relationship, because good relationships simply aren’t that fragile: if passing contemplation of breaking up is enough to make someone pull the trigger, well, clearly things were pretty dire in the first place. I wonder if your friends and family are insecure in their relationships, and their reactions say more about their personal fears than your situation. But whatever the case with them, the important thing to remember is that you and your husband’s ability to tackle this subject openly and lovingly demonstrates faith in the relationship’s resilience, not a lack thereof.
In summary, Tia, you and your husband can forget about traversing the topic with your family and friends (who after all don’t have a horse in this race). Instead, head off to separate lawyers to each get some independent advice. Yes, the process will be tedious and yes, no one likes paying legal fees. But it’s well worth exploring whether you can endure a bit of tedium and expend a bit of money now, to avoid enduring significant distress and single-handedly funding some lawyer’s spoiled kid’s annual private school fees ten years down the track.
Maddy Phillipps is a barrister, freelance writer and clinical psychology student. EMAIL your life problems to dearmaddy@tvnz.co.nz.
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