By Caroline Keeley
A Pre-Nuptial agreement, a formal contract between two people prior to marriage or civil partnership, sets out how their finances will be determined in the event of the breakdown of the marriage.
Such agreements, more commonly referred to as PNAs, are not formally binding in England and Wales, but have become an ever popular method of providing a clear agreement concerning finances between couples, given that money can be an extremely contentious topic in a relationship, in particular, where couples have different approaches towards spending and saving.
Following precedent set in 2010, in the ground-breaking case of Radmacher v Granatino, PNAs are now afforded heavy evidential weight within the UK Family Courts and held up, unless they are deemed to be unfair and fall outside particular criteria. The Courts have wide discretion to waive any Pre or Post-Nuptial Agreement, particularly if the same is deemed to be unfair on any children of the marriage.
However, it would appear that money is not the only divisive topic, as the US has lately witnessed a surge in ‘Baby-Nuptials’, governing arrangements between future parents about the division of childcare responsibilities. While this may appear a novel concept, surprisingly, the idea has been around for some 50 years already. It is speculated that Hollywood couples, such as John Krasinski and Emily Blunt, have allegedly entered into such an agreement. It is also rumoured that Meghan Markle and her former husband, Trevor Engelson, also considered it, in order to protect Ms Markle’s career.
Content & timing
It is usual to draft the agreement before the arrival of a baby and it is often requested at the same time as drawing up a Pre-Nuptial agreement or indeed a Post-Nuptial agreement.
It is understood that such an agreement could include any aspect of a child’s life including specifically how each parent spends time with the child, if they live apart or even financial arrangements, but can also include other elements, such as the child’s future education and nutrition.
So, while having an agreement in place, how can a spouse actually be held accountable for any aspect of the agreement? Essentially, Baby-Nups are not legally binding and, indeed, it is not a concept that would even induce everyone into forming such an agreement. Ironically, it would seem that Baby-Nups are also unenforceable in the United States too.
Indeed, in the unfortunate event of a separation, more commonly, couples can agree to draw up a Parenting Plan, which, similarly to a Baby-Nup (albeit post-separation), can cover practical issues of parenting, such as communication and dealing with differences, living arrangements, such as who your child will spend time with (including other family members), how often and when, education, healthcare and religion. However, a Parenting Plan does not cover how you intend to divide up your money, home and assets.
Baby-Nups are also unlikely to be something which lawyers and the Family Courts in the UK would be deciding upon in the very near future. Furthermore, any aspect which deals with the child’s welfare would not be enforceable. If a dispute arose regarding welfare, the Court would focus solely upon the child’s welfare at the time of the dispute and not upon the terms agreed in a Baby-Nup.
Notwithstanding, agreements relating to financial provision for children may be effective, depending upon the circumstances. Nonetheless, it is not possible to contract out of paying for child support, through any type of nuptial agreement.
Furthermore, in the UK, if a Court is asked to consider the arrangements for a child, financial or otherwise, the paramount consideration is what is in the child’s best interests with reference to the welfare checklist pursuant to the Children Act 1989.
Ultimately, agreement is the priority and there is tremendous value in deliberating expectations before a child arrives. So while Baby-Nups are unenforceable, it is a useful exercise for couples to focus their minds. Indeed, should couples ultimately separate, then Parenting Plans can be agreed.
It is also important to consider taking professional advice, either from a solicitor or professional advisor, who will be able to advise and guide you on family law matters.
If you would like further information or advice in respect of children matters, finance or divorce and separation, please contact us at TWM Solicitors.
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