Family Law Experts Say Alternative Dispute Resolution Makes Excellent Setting For Pre And Post-Nups

A new survey on staying friends after a break-up has revealed that just over seven in ten divorced couples didn’t have a pre-nup agreement in place.

The survey by OnePoll polled 1,000 divorcees about their experience getting divorced, and whether their relationship ending had been an amicable situation, in a bid to see how widely known alternative dispute resolution (ADR) was.

Just over seven in ten (71%) didn’t have a pre-nup in place at all, suggesting more take-up is needed for these agreements that can help to make a divorce go more smoothly – as well as cutting down on the amount of cases that need to be heard by the courts.

However of those that did, 92% said it was upheld in court – a very promising outlook for a document that isn’t currently legally binding.

Over a third (37%) said divorce was more expensive than they expected while 77% found their divorce proceedings stressful. Getting a pre-nuptial agreement in place can be a way of alleviating some of that stress and extra cost, as well as providing peace of mind for the couple about how their finances or other assets would be treated.

Almost a third (31%) thought the divorce might have cost less if they’d been more amicable towards their ex, something family law experts at Irwin Mitchell say can be helped with a calm discussion about current and future assets before the marriage even takes place.

Expert Opinion

“ADR isn’t just about when a relationship breaks down – it can also be used for things like pre and post-nups, which are slowly becoming more mainstream and not just for the rich and famous.

“Because pre and post-nups aren’t technically binding this can put a lot of people off the expense and time of getting one – however, our survey has shown that just over nine in ten were upheld by the courts if they existed, so having something in place when you’re on the best terms possible is the sensible way forward.

“Mediation is an excellent way of negotiating a pre or post-nup agreement, especially when there’s a big difference in the couple’s individual assets. A trained mediator can help to navigate the complexities around this and make sure the agreement that’s put in place is a fair one.

“Getting these agreements done through ADR, such as mediation or arbitration, is a great way for couples to protect their future – it might not be the most romantic thing to ask your future spouse, but it’s usually worth the investment.” Ros Bever - Partner

Family law experts at Irwin Mitchell say mediation is just one way of negotiating a pre or post-nup, and that the key is open conversation early on.

35% weren’t offered ADR as an alternative way of resolving their divorce, which could lead to a similar situation in pre and post-nuptial agreements – and shows how ADR in a more private setting could encourage better uptake of these agreements.

Ros continued: “Direct lawyer-to-lawyer negotiations, whether that takes place in person or at an online meeting, can be very effective in reaching an agreement when it comes to pre and post-nups.

“After these negotiations have taken place, it’s almost always possible then to reach an agreement that benefits both parties. This is of course subject to the attitudes of the couple, disclosure and timelines.

“At the heart of this though is talking through the needs and wants of the couple, whether they choose to use ADR or simply have a more informal situation where lawyers are guiding them through the process. Open and honest communication is the only way to reach the best pre and post-nup agreement.”

Read Irwin Mitchell’s full report on ADR, ‘Divorce – Let’s do it differently’