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Mediating Mr & Mrs Smith: What Can We Learn From Celebrity Divorces?

01/11/2016 11:07

The marriage of Johnny Depp and Amber Heard ended in a blaze of publicity in August, as did of course that of Brad Pitt and Angelina Jolie a month later. Lurid headlines have focussed on the allegedly extreme behaviour that has accompanied the end of these relationships, as well as the eye-watering sums of money potentially involved in the settlements. But is there anything to be learnt from these high profile cases for divorcing couples outside of the public eye?

Don't go into battle mode

First of all, forget the hype. Even the broadsheet media habitually uses phrases such as "acrimonious divorce battles" in which couples "thrash out very costly divorce settlements" to describe marriage breakdowns.

The language used is very clearly one of warfare and violence. It really doesn't - and shouldn't - have to be that way, especially where there are children involved.

Plan with a pre-nup

One way of taking some of the pain out of the breakdown of a marriage is to enter into a pre-marital agreement (or "pre-nup"), which sets out the terms of divorce, should it happen, ahead of the marriage itself. Johnny Depp and Amber Heard join the list of celebrities including Heather Mills and Paul McCartney, and Guy Ritchie and Madonna, who famously did not have a pre-nup and who subsequently endured drawn-out divorce battles.

Pre-nups have been common-place in the US for many years but culturally, the British have been relatively slow to embrace them, although they are being used increasingly regularly. A Supreme Court ruling in 2010 involving a German heiress, Katrin Radmacher and her one-time merchant banker husband, Nicolas Granatino, brought them to particular prominence.

The case established a principle of English law that states a pre-nup will be upheld if it is freely entered by each person with a full knowledge of its implications. It ensures a fair and equal resolution to the divorce; if the wealthier person isn't sufficiently generous, the divorce court is likely to assess the terms to meet the other person's needs.

Often people marrying for the second or third time and who are financially well-established wish to enter a pre-nup to protect their wealth for their children of previous marriages. Similarly, wealthy parents of children who are marrying often wish their children to enter pre-nups before passing wealth to them. Whatever the motivation, if a marriage ends, a pre-nup tends to ensure that the need for an acrimonious divorce battle is avoided.

The clear directions provided by a pre-nup can also help to avoid any unwanted public attention during the divorce proceedings. Since 2009, accredited journalists have been permitted to attend certain family court proceedings. As a result, even those who don't generally live in the media spotlight can find that there is press interest in court hearings. However carefully a couple tries to regulate their financial relationship with a written agreement, human nature is such that emotions can takeover and people can lash out. There have, for instance, been lurid headlines about Brad Pitt's alleged behaviour on a plane in the presence of the children and few parents would welcome their children being caught up in the crossfire and publicity of their divorce.

Consider non-court options

If couples find themselves in the shoes of Johnny Depp and Amber Heard - lacking a pre-nup - there are methods of settling their differences without the assistance of a judge that avoid the potential for publicity and the stress of going to court. Among the options are solicitor-led negotiations which lead to a settlement that the couple agree to converted into a court order; mediation, where an independent mediator talks with the couple to try to reach a voluntary settlement; or collaborative family law, where both clients and their solicitors work together using a team-based approach.

Another dispute resolution model that is gaining traction in England and Wales is arbitration. This is an effective way for a couple to untangle their lives if they do not want to go to court but cannot agree on a financial settlement or some issues relating to their children. An arbitrator would, like a judge, impose a decision on a couple but the process would be absolutely private.

While it feels unromantic to plan for a potential breakdown in a marriage before it has even begun, couples should consider what their future holds. If it includes an increase in wealth or children, a pre-nup can reduce the pressure for everyone involved if such an upsetting event does take place.

If you don't have a pre-nup and things go wrong, it is worth trying to think through the solutions as objectively as possible to avoid the potential trauma of a series of visits to court.

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