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Love and marriage (and divorce): Succession-style

"Let's just enjoy this sham marriage and the death of romance. It will be great." – Roman

Charles Russell Speechlys Succession Watch: Episode 3

This week, we draw on the firm’s family law expertise to evaluate the legal issues surrounding Connor and Willa’s marriage. We also consider what protections are afforded to Kerry as Logan’s unmarried partner in the wake of his passing.  

Like the rest of the world, here at Charles Russell Speechlys we are still reeling from the news of Logan Roy’s death (Season 4 Episode 3 of HBO’s Succession). We will need sufficient time to digest that news and collect our thoughts before paying our respects to the patriarch of “a great American family company”.  After all, there may still be Roman supporters out there thinking: “no doctor has actually seen him” and “until we do know [he is dead], it’s not a very nice thing to say”.  

Despite Logan’s death being the material event that dominated the narrative, themes of family (or lack thereof) were everywhere in Episode 3. The events unfolded, like a Shakespearian tragedy, against the backdrop of Connor and Willa’s wedding. We watched the “not estranged” estranged children board a red, white and blue steamship to the sound of a brass band (suggesting that Willa did give in to Connor’s wish for a “little bit of hoopla” to aid his political campaign). We met Willa’s mother for the first time and wondered if she would make a more compatible bride for Connor. Logan collapsed in a plane with Kerry by his side instead of his wife Marcia, and his son-in-law, Tom, instead of his children. And, for better or worse, the episode ended with Connor and Willa tying the knot on the quayside, off the boat, without the pomp, and with just a handful of guests attending (notably none of Connor’s own family).

Prenuptial Agreements (or “pre-nups”)

“He’ll look after you.” – Willa’s mother

So far there has been no mention of whether Connor required Willa to sign a pre-nup in the run up to their wedding. We find this surprising, given that we know Connor’s family wealth is a key motivating factor for Willa in marrying him, and there are significant pre-marital assets.  

In England and Wales pre-nups are not contractually binding, but they can be a highly persuasive factor for the Court. As long as they are entered into freely, with both parties having a full understanding of their implications (which usually requires both parties to have had independent legal advice and to have given full/accurate financial disclosure) a pre-nup is likely to be upheld unless it would not be fair to hold the parties to the agreement. The English Court’s interpretation of what is ‘fair’ has developed over time and is generally understood to mean that, at the very least, neither party would be in a position where they couldn’t house themselves (in a property of a similar standard/location to that in which they lived during the marriage) or to meet their expenses/outgoings.

The family Courts here have a reputation as one of the most generous in the world. If there is surplus wealth beyond satisfying each of the parties’ needs, the Court will usually divide the parties’ marital assets equally. The most obvious advantage of a pre-nup, therefore, is that it may protect a spouse who is seeking to ‘ring fence’ what can be referred to as ‘non-matrimonial property’; for example, gifted/inherited family wealth and assets accrued prior to marriage. It may also help to limit spousal maintenance obligations if there are divorce proceedings later down the line.

In the case of Connor and Willa, a pre-nup would help Connor to (a) effectively ‘ring-fence’ his current wealth; and (b) protect his future inheritance by reducing the likelihood that those assets would be shared with Willa on divorce. In cases where there is significant family wealth, a pre-nup would be focused on the financially weaker party’s needs (in this case, Willa). Willa’s ‘needs’ would likely be generously assessed by the family Court in light of the standard of living she enjoyed during the marriage, which would need to be borne in mind when deciding what the pre-nup would say she’d get upon divorce. It’s likely that provision would be made in a pre-nup for a property similar to the family home she shared with Connor and a substantial maintenance fund for her to meet her outgoings. If the pre-nup didn’t meet her needs, there would be a risk it wouldn’t be upheld by the Court on divorce.

If Connor had required Willa to sign a pre-nup i.e. he refused to marry Willa without one (which may be unlikely for Connor but perhaps more pertinent to Tom and Shiv) that wouldn’t suggest it wasn’t entered into freely, and many pre-nups will explicitly confirm this.

It is an opinion shared by many, and evidently Tom’s mother, that pre-nups are considered “unconscionable” or unromantic. In reality, they can help to provide a more predictable financial resolution on divorce at what will already be a difficult time.

What if there is no pre-nup?

“I'm always scared you're gonna walk away.” ­– Connor

If there is no pre-nup in place, parties can seek to reach a financial settlement out of Court. Should that not be possible, the Court will decide what each party should receive. In making that decision, the Court will have regard to all the circumstances in the case (in accordance with section 25 of the Matrimonial Causes Act 1973), including but not limited to both parties’ income, financial resources, the standard of living enjoyed during the marriage and their needs (with first consideration given to any minor children). In short, the Courts here have a wide level of discretion and there is no precise formula to determine what each party will receive.

Following the case of White v White, the starting point for the English Courts will be an equal division of the marital acquest (i.e., everything that was built up during the marriage). In Connor and Willa’s case the marital acquest may be minimal unless Connor builds up his own wealth during the marriage. In the absence of a pre-nup there would be no strict ring-fencing of the non-marital assets, and how the Court treated them would likely be significantly impacted by the length of the marriage (as well as factors such as whether Connor and Willa had children).

In a short marriage (if Willa “walked” in the next few years) it would be more likely that Connor’s pre-marital assets and his incoming inheritance (assuming he inherits from Logan’s death) would not – or not entirely – fall into the ‘pot’ for equal division but would rather be treated as a separate category. Alternatively, if Connor and Willa were married for a longer time (for example, 10 years or more) then it would be much less feasible to try and argue that Connor’s pre-marital / inherited wealth should be kept separate from the pot. This is especially true where inherited assets have been used in the day-to-day economy of the marriage. For example, if Connor used his inheritance to buy real estate in their joint names and to fund their lives together (or indeed to finance Willa’s own pursuits separate to Connor, like funding her playwrighting).

It is also worth considering whether Connor and Willa’s marriage would interfere with the family company. Connor hasn’t played a key role in establishing or growing the business, so it is very unlikely it would be viewed as a marital asset which has been built up (due to Connor’s efforts) throughout the course of the relationship. Even if it were a marital asset (and so subject to a sharing claim) it’s unlikely that the Court would give Willa any shares in Waystar as the Courts prioritise financially separating the parties; they would not want Willa to be unnecessarily involved in the business when it is so entwined with the Roy family. If possible, they would try to leave Connor with his interest in the family business and make provision for Willa from other assets. They would, however, view the family company as a resource available to Connor and, in turn, the Court may expect him to sell (or borrow against) some of his shares, if necessary, to ensure there was sufficient liquidity available to meet Willa’s needs.

Sham Marriages

"Let's just enjoy this sham marriage and the death of romance. It will be great." – Roman

You can always rely on Roman to provide a perfectly curated comment that is both cynical and cutting in its delivery. But could there be truth behind his playful vindictiveness?

In England a ‘sham marriage’ technically refers to a marriage contracted for ulterior reasons (such as an immigration advantage). This is evidently not the case here. There’s a common misconception that a marriage is a ‘sham marriage’ if one party is marrying for calculated financial gain i.e., they are an ‘opportunist’ (arguably like Kerry). It is, therefore, understandable why some would consider this to be the case with Willa and Connor, not least because their relationship begins as a transactional one, with Connor hiring Willa as an escort. Furthermore, it seems Willa only agrees to being in an exclusive relationship with Connor once there is a specific financial advantage for her (when he agrees to finance her play).

The reality, however, is that many people marry for financial security (specifically “money and safety”, as Willa says). Love isn’t a requirement for a legal marriage. In England and Wales, there are just a few specific legal (largely procedural) requirements that must be met, which include both parties freely consenting to the marriage. Connor knows that Willa is (partly?) marrying for financial security and it is his decision, freely made, to go ahead with the marriage anyway. It’s equally Willa’s own decision, freely made, to marry Connor (at least partly) for money rather than love.

So Roman might be misusing the legal term ‘sham marriage’ here – whether he’s right in saying it’s the “death of romance” is another question.

Kerry’s Position

Just my personal assistant” – Logan Roy

Of all the characters, Kerry had the most dramatic fall from power in Episode 3. She started the episode in the limo at Logan’s right hand, and ended it isolated at the back of the plane, excluded from company and family decisions. Despite her influence over Logan, she is not legally part of his family, which might leave her exposed after his death.

We may never know the precise nature of the relationship between Kerry and Logan. She was clearly more than “his personal assistant” but was she living with him? Was Logan supporting her financially or compensating her for services at a level beyond what would be reasonable for a personal assistant?

Contrary to popular belief, there is no concept in England and Wales of a common law marriage. Whilst Logan was alive, if he and Kerry ‘split up’ she would have no legal claim against any of his assets (as she would if they had been married); Logan would have no legal responsibility for her (outside of their employment relationship). If Kerry and Logan had had a child together then Kerry would be able to make an application under Schedule 1 of the Children Act 1989 for financial provision for the child, but this would be focused on the child’s needs and would likely be a far less generous award than if they had been married.

Following Logan’s death, if Kerry was living in one of Logan’s properties, she wouldn’t have any right to stay there unless she was a legal owner of the property (either by virtue of Logan transferring the property into joint names whilst alive or leaving it to her in his will) or she had some form of tenancy arrangement. If neither case applied, then the property would pass pursuant to Logan’s will (if he had one) or via the intestacy rules. We would assume (although you never know with Succession), that much of his estate, including the numerous properties, will pass to the children – in which case it would be up to them to decide whether to continue to allow Kerry to live there.

Unless Logan already transferred assets to Kerry prior to his death or made specific provision for her (by name) in his will, it is unlikely that she would receive anything. She does not have automatic rights as his ‘personal assistant’ or even as his ‘girlfriend’ (if that is what she in fact is). It may be possible for her to claim as a cohabitee under the Inheritance (Provision for Family and Dependants) 1975 Act, but only if she and Logan had been in a relationship for at least 2 years prior to his death and they were living in the same household (as if they were a married couple). No doubt the children would strongly dispute this – as might Marcia.  

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