Posted on 28.9.16 by Nicola Fraser
The revelations of Leah Hunter in the recent Guardian article “How a Parenting Prenup Made My Life Amazing” has sparked interest in the role of the pre-nuptial and similar agreements in setting out child arrangements. Given that Leah Hunter lives in the U.S. this article considers the relevance, enforceability and whether there is any value in these types of agreement in England and Wales.
What is a ‘parenting pre-nup?’
A ‘pre-nup’ has become a commonly recognised tool, particularly thanks to popularity with celebrity pre-nuptial agreements in Hollywood that has seen celebrities from all backgrounds writing up contracts worth millions to protect their assets. Leah Hunter’s case concerns parents who in fact had no intention of ever having a relationship, let alone marrying. The term ‘parenting pre-nup’ does not relate to a pre-marital agreement, but instead describes a contract between separated parents which sets out how to care for their children. From living and contact arrangements, right down to details like food choices, breastfeeding and covering the child’s gap year, the parenting pre-nup has virtually everything covered.
The Position in England and Wales
Currently there is no English equivalent to the ‘parenting pre-nup’ although changing family dynamics are forcing the Court to re-think its approach towards making arrangements for children. The traditional concept of a family is no longer the ‘norm’ with modern family structures changing; single parents, step-parents and same-sex couples where children may be adopted or born through a surrogate mother. A clear set of arrangements for the children agreed by all parties helps to avoid issues later.
The Court’s Advisory Service ‘CAFCASS’ has introduced a document called ‘The Parenting Plan’ which attempts to provide those with parental responsibility an opportunity to consider and draw up an agreement on:
- How parents should communicate and dealing with differences
- Living Arrangements
- Ways of promoting the child’s emotional well-being
When Parenting Plans are entered into, they should like any other child arrangement, take into account the changing needs and best interests of the children concerned, and be created with reference to the ‘Welfare Checklist’ in the Children Act 1989.
In some ways similar to the ‘parenting pre-nup’, this Parenting Plan enables parents to prepare for situations before they occur, as opposed to arguing about them in Court once things have already gone wrong. The Parenting Plan however, is an informal document and does not offer the remedies for breach that a normal contract would, nor is it a Court Order. In this way it is different to the U.S.’s ‘parenting pre-nup’.
Pre-nups generally: legal standing
‘Pre-nup agreement’, ‘post-nups’ and separation agreements are contracts between married couples setting out how finances should be dealt with on divorce or separation and as a general principle of law, they are not strictly enforceable in this country. The law surrounding pre-nups has been developed by judges on a case-by-case basis and the specific facts of one case can produce a very different result to another. While there are no hard and fast rules there are a number of things one can do to ensure that their agreement is as watertight as can be, for this reason a lawyer should always be consulted as part of the preparation process.
In the view of some, the issues with enforceability of pre-nups in England and Wales leaves us lagging behind the times, (‘pre nups’ are already widely enforceable on the continent and in some U.S. states). That is not to say that making a pre-nup is a complete waste of time, as where made with the benefit of proper legal advice, its existence is one of the factors the Court can consider in making financial order in divorce proceedings.
It should be noted however, that one of the situations where the Courts are very reluctant to enforce pre-nups is where children are involved. One of the reasons for this is that any agreement entered into beforehand is unlikely to be totally relevant at the point the Court are being asked to consider it.
When the Court considers a Children Act application it must first consider the ‘best interests’ of the child concerned in that moment. What is in a child’s best interests is a fluid concept and can change considerably over a short period of time. It is therefore unlikely that prior agreement would allow sufficient flexibility for a judge to impose it on the parties.
This then begs the question- would a ‘parenting pre-nup’ – which specifically concerns children- be given any consideration at all in an English Court? One could infer from this that they would not.
Should I be making a parenting pre-nup?
Your parenting situation may not be as complicated as that of the recently separated ‘Brangelina‘ with a mix of six biological and adopted children from across the globe, as it has come to light the ex-husband of Jennifer Anniston and Angelina Jolie are caught up in a widely publicised dispute over their child arrangements post divorce. The answer for UK parents is probably not, at least not right now. Although it may be that a ‘parenting pre-nup’ like a Parenting Plan could be used as reference tool for the Court to refer to in determining what the arrangements up to that point have been and whether any change in circumstances might be detrimental to the children concerned.
The process of creating a parenting pre-nup is perhaps more useful than the document itself, it’s a good way to encourage parents to communicate and think about problems or day-to-day situations that may arise and would require consultation with the other parent, as well as agreeing on matters that do not. However, clarity in the form of legislation is first required on the pre-nuptial agreement before we move onto trying to impose contractual obligations on one another in children matters.
Our Family and Matrimonial team at Gorvins deal with arrangements relating to any children and the financial aspects arising on divorce. We offer a personal, practical and collaborative service which assists when dealing with cases of a sensitive nature. If you need advice please contact Nicola Fraser on 0345 507 5124, or e-mail firstname.lastname@example.org