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In one client's attempt to protect their business from possible future ownership dilution, Craig Aronoff, a consultant with Kennesaw University-affiliated Family Business Consulting Group, recently had to throw his weight behind an uneasy case. His parents issued an ultimatum: sign it or forfeit any stock ownership in our business.
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It's common for American business families to arrange pre-nups to ensure the family business, or equity, is not up for grabs by spouses on divorce. But somewhat disturbingly, it isn't the 'divorce generation' driving it; lawyers acting on behalf of wealthy families have noted a distinct trend towards elders putting successors and their chosen ones in a position where they are threatened with serious consequences for refusing, such as being cut out of ownership or even succession plans. With one-third of all marriages in England one-quarter in Scotland ending in divorce, British family lawyers are being kept busy — and rich — sorting out messy asset separations through the courts.
Considering that divorce payouts can extend from property to pensions and on to shares and business equity, marriage can present a real threat to familial control over its enterprise ownership. Inevitably, forced or not, the whole unromantic issue has the potential to cause arguments.
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In , gossip columns were aflame with the news that Revlon patriarch and thrice-married billionaire, Ronald Perelman, was said to have vetoed his son Joshua's wedding because he had not had his intended sign a pre-nup presumably to guard from divorce history repeating itself in the next generation. Harper's colleague and head of private clients, John Riches, concurs. These days, if assets have been built up and the marriage was of any length, the wife commonly gets half the assets — that can mean half the business, or half its value.
A common structure for protecting family wealth and business ownership is to integrate a pre-nup with existing or specially-created trust vehicles.
A family pays an agreed amount into a trust on a regular basis and if a pre-nup is activated, the payout comes from this trust, circumnavigating any dipping into company stock. If existing trusts have been set up in an offshore financial centre, it is wise to consider signing the pre-nup in that jurisdiction because in places like Bermuda or the Bahamas, marriage and divorce laws are more favourable, lawyers say. One problem though — pre-nups aren't legally binding in the UK yet, although the legal profession is lobbying to change that.
But not being legally enshrined does not render UK pre-nups useless, as they are more likely to used as a guide by the courts in divvying up the assets if they stick to three cardinal rules: Fairness : The division of assets must appear fair and balanced, in accordance with the contribution the courts will deem a spouse made to the family and to any business, either directly or indirectly, for instance by supporting a husband who becomes a successor. Disclosure : All assets and sources of wealth of the family must be fully disclosed in the pre-nup, to assure the court of the good intentions to share wealth equitably with a departing spouse who is deemed to have made a contribution.
To show the court due autonomy, lawyers advise a pre-nup to be signed at least 28 days before the wedding, with each party having independent counsel and at least two witnesses to the signing. As Aronoff says of his client's case: "If there were a divorce, [her] attorneys could perhaps make coercion an issue, but the parents were influencing their son and coercion usually deals with the inaction between the parties to the agreement.
In the age of super-wealthy and high-profile captains of industry many from family dynasties , wives have become more forthright in claiming their due from corporations where they believe their part in a marriage has had material impact on a company or executives' success therein. Lorna argued her contribution to Gary's success was worth exactly half of his fortune, detailing in court how it fell to her to organise relocating the family when his job moved, putting on lavish dinners for executives, and raising their children alone.
If a spouse has been given a job within the family business, they could be likely to see it as fair that they receive some sort of financial or share-based reward in a pre-nuptial agreement. The latter had no pre-nup; the former had one but a 'time-out' clause Beasley had written into it rendered it void after a decade of marriage.
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