How can mediation help couples discuss prenuptial agreements?

Tim Whitney and Connie Atkinson are both mediators and members of a Family Law Agreements Group in which they share ideas and expertise in respect of pre and postnuptial and other family agreements. Here, Tim and Connie explore the use of mediation for couples entering into a prenuptial agreement.

Mediation

Mediation is a forum within which a couple can discuss the arrangements for their family with a view to trying to reach an outcome together. The role of the mediator is to help set an agenda and manage and facilitate the discussions. While mediation is usually used by separating couples to discuss the arrangements for their children and the financial arrangements arising out of their separation, it need not be limited only to these issues. 

At the start of a mediation, the mediator will explore with a couple what they want to cover during the sessions and what they hope to get out of the process.  An agenda is set and referred to frequently to highlight where progress is being made. Most commonly, parents want to discuss the day to day arrangements for their children, how holidays will be divided and to agree common parenting guidelines or rules which will be applied consistently across the two homes in which the children will live. When it comes to the financial arrangements, a couple usually want to undertake a financial disclosure exercise within mediation and then discuss how the assets will be divided and whether any additional financial support should be paid.

While those are the most common areas covered in mediation, a huge number of other matters can be mediated, including issues which the court would not necessarily have the time or power to deal with. One of the benefits of mediation therefore is the flexibility of approach; a couple can decide together what they want to address and the point in the process in which this happens.

If required, other individuals can attend some or all of the mediation sessions if the couple and mediator agree that it is appropriate. This may be another professional such as an IFA or the parties’ lawyers or a family member or other third party. This may be useful where a family member or new partner intends to contribute or help facilitate the proposals being made.

Prenuptial agreements

The family court’s position on pre-marital agreements has solidified over the past 10 years and as a result their popularity continues to increase. Although it is not possible to legally bind the court, the case law makes it clear that a judge should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

There are a number of formalities that should be met if a prenuptial agreement is going to be upheld. These are set out below:

• it must not seek to avoid financial responsibility for the needs of any children;
• before the agreement is entered into, each party should disclose their financial position to the other, and any other information as would reasonably be considered to be material to a decision by the other party to enter into the agreement;
• there should be no vitiating factors present at the time of signing the agreement, such as duress, fraud or misrepresentation;
• each party must receive relevant legal advice from a qualified lawyer before the agreement is entered into; and
• it should be signed at least 21, and ideally more than 28, days ahead of the marriage.

Although the legal position has developed over the past 10 years the same cannot be said about the process of negotiating and drafting the agreements. Prenuptial agreements should come with an emotional health warning.  At a time when couples should be discussing wedding plans they instead have to focus on what will happen if the marriage breaks down. It can be very difficult reading solicitors’ letters setting out in stark terms what will happen if the relationship fails. It is never going to be possible to remove this emotional strain but mediation can certainly assist and minimise the impact on the couple.

Mediating prenuptial agreements

For the right couple, mediation can be a safe, neutral and productive forum within which to discuss the reasons for and proposals in respect of a prenuptial agreement. This may be appropriate where a couple wish to lead the discussions themselves but would like a neutral third party to assist.

The earlier a prenuptial agreement can be finalised, the better. For most couples the weeks leading up the wedding day are a crescendo of stress. They do not want to be finalising a prenuptial agreement whilst also making decisions on the seating plan, menu choices and flowers. Once the suggestion of a prenuptial agreement has been made, therefore, a couple may wish to make arrangements to speak to a lawyer and also to consider whether mediation may be a suitable option for them.

An experienced mediator should be able to help the couple discuss their concerns and priorities in a safe and supportive environment. Whilst the mediator will not offer any legal advice or suggest that either party’s proposal is better or worse, they will be able to provide legal and other information and help the couple explore their options. They can also provide helpful structure to the meetings ensuring couples discuss all relevant issues.

In discussing a proposed prenuptial agreement in mediation, the couple will also be addressing many of the formalities mentioned above, such as the disclosure of their financial positions and the ability to discuss the proposed terms of a prenuptial agreement and hopefully remove the risk of pressure or duress. One of the other key benefits is that the mediator should help the couple reality test the proposed terms of the agreement. This would usually involve considering the couple’s plans for the future, looking at a number of likely scenarios and cross-checking that the proposed terms would produce a fair outcome.

This can all be done far more efficiently when the couple are sitting in a room together having these discussions directly. The risk of misunderstanding is also minimised when the couple are able to immediately discuss and react to suggestions.

The couple will still need to have independent legal advice in the background and following a successful mediation (again to meet the formalities referred to above).  The mediator will be able to summarise the proposed terms and these can be reviewed by the couple’s lawyers and incorporated into a prenuptial agreement.