Need Trumps All 

Published on 18 October, 2023 | Melanie Hadwin

Major life events are quite often the trigger for people to consider their circumstances.

Alongside the birth of a child, the death of a loved one or serious illness, marriage perhaps provides the most significant single reason to take stock.

The practicalities – and no little complication – of living together as spouses have prompted an increasing number of individuals in recent years to draw up pre-nuptial agreements.

Seen by some as slightly unromantic, I and many others would argue that they are incredibly useful, determining the nature of what might happen if a marriage doesn’t succeed.

That certainly doesn’t mean those involved are striking a slightly fatalistic note.

Divorce used to be relatively uncommon. In 1963 – the same year as The Beatles were asking us to ‘Love Me Do’ – just 28,935 marriages ended this way.

According to the most recent numbers from the Office for National Statistics (ONS), there were 113,505 divorces in 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

Although that represents a steep drop from 1993 – the record year for divorces (165,018) – it still marks a shift in habits and attitudes.

It also underlines why pre-nups are thought to be so relevant, especially since a Supreme Court ruling in 2010 which meant that they acquired greater weight in discussions about how to divide joint marital assets (https://www.supremecourt.uk/cases/docs/uksc-2009-0031-judgment.pdf).

I have found myself reflecting just how useful they are in recent weeks, while reading about discussions between the last former US President, Donald Trump, and his wife, Melania.

She is reported to have renegotiated the terms of her pre-nup at a time when her husband faces a raft of indictments (https://www.thetimes.co.uk/article/a494b782-5ea2-11ee-b186-11c4e8ddacff?shareToken=39c4773e27af88366e3e445bc8686444).

If this had been done in this country what would have happened is that the couple prepared a post-nuptial agreement.

These can be done either to revise the terms of a pre-nuptial agreement or as a stand-alone document.

Whilst the process of drafting the documents is relatively similar, the key difference in this case is that the Trumps married in 2005, long before the latest changes.

In my experience, post-nups are the result of a change in circumstances after a marriage has taken place.

They frequently include a large family inheritance or the birth of a child, which can require a review of any arrangements already in place.

Few changes, of course, are as dramatic as the shift experienced by Mr Trump: from being a businessman and media personality to the White House and, now, numerous court rooms.

Media have described how this is apparently the third time that his agreement with Melania has been amended.

On this occasion, her reported priority is the future interest of the couple’s teenage son, Barron.

There has been speculation that the timing of the revision is linked to Mr Trump’s legal predicament.

However, I believe that whilst his situation is far removed from those of more modest wealth, it is simple reality which connects them.

Mr Trump has been married and divorced twice before, so he and his wife will surely know that a break-up is as possible for them as it is for other couples.

In 2021, the year covered by the most recent ONS’ divorce figures, 689,308 American couples divorced (https://www.cdc.gov/nchs/fastats/marriage-divorce.htm).

The US number would have been even higher but for the absence of data from a number of states (California, New Mexico, Indiana, Hawaii and Minnesota).

Although I’m not a specialist in US divorce law, I am very much aware of the considerations which come into play when pre- or post-nuptial agreements are examined upon divorce in this country.

Chief among them – as in all other aspects of family law – is fairness. In short, do the documents provide suitable provision for both spouses, particularly the one who is less well-off?

In concluding such deliberations, their future needs are paramount.

There is, in fact, a saying that “needs trumps all”, which has held true for many years as a fundamental point in the financial phase of divorce proceedings.

Melania Trump’s needs may be rather different to some others but I suspect that they will be regarded proportionately.

Even for those spouses who have not been a head of state, nuptial agreements – put in place before or during a marriage – offer important clarity.

It is far better, in my experience, to sort out the potential basis of asset division before a relationship becomes acrimonious, given that a reasoned response rather than an emotional one makes for a better outcome all-’round.

That is especially critical when there are children to think about too.