Divorce: going Private
There’s no denying the uptick in divorce inquiries from married couples that happens in January. Here is our review of 2018 and headline cases and what it will mean for those contemplating the D word.
10 December 2019
The first dilemma, what should be included? Can you dictate that your partner has to join swimming club each week, even though they have vocally said they dislike it? Or should the focus be on night feeds or nappy changes? I called on my twitter friends for some advice. “Plan long term”, said one user. “cover all extra-curricular activities and birthday parties until the child is able to drive”, another responded.
While they might seem like a new idea, a conversation with Rebecca Christie, a family law associate at Hunters, revealed that in fact there is mention of a similar arrangement as far back as 1969 from American fiction writer Alix Kates Shulman in her article ‘A Marriage Agreement’. Rebecca provided a few ideas, “It could include any aspect of a child's life, including, more routinely, how often each parent spends time with the child if they live apart or financial arrangements, but can also include more novel elements such as the child's future education and nutrition”.
Usually drafted before the arrival of a baby, provisions are sometimes requested when drawing up a pre-nuptial agreement, explained Sarah Higgins, Head of the Family group at Charles Russell Speechlys. “Clients sometimes want to include detail on who will be the child’s primary carer, or where the child may live.” It might even go as far as including “grandparent access, finances, wills and trust arrangements”, said Jazmin Brown, solicitor at Howard Kennedy. I could see how formalizing arrangements could help with juggling career and motherhood.
The next challenge was to consider how would it work in practice. Could the arrangement help avoid future arguments? “The idea is to create a way of managing some of the new-born chaos by having defined rules”, explained Shivi Rajput, a senior associate at Camilla Baldwin. Sounds great in theory, but how do you hold your spouse accountable for the night-time feed, if they have an important meeting the next day and needed sleep? And that’s when I hit my first stumbling block. The answer is you can’t.
“Baby-nups are not legally binding, and the concept is certainly not for everyone”, added Shivi. Would she enter into one? “Probably not. For me, parenting is about embracing all the highs and lows. Besides, a little chaos just adds to the fun, right?”.
Despite their prominence, James Ferguson, Head of Family at Boodle Hatfield added, “Very few of these agreements are believed to be the work of UK family lawyers”. He believes that, “It would be surprising if such agreements were able to last for long after the birth and they certainly will not be something that lawyers and the family courts in this country will be adjudicating upon for the foreseeable future."
Are they worth the effort? With some further digging I learned there are certain elements which might be enforceable. “A babynup which deals solely with the child’s welfare will not be enforceable. If a dispute did arise in the future, the court would focus solely on the child’s welfare at the time of the dispute, and not on a babynup contract. Nevertheless, agreements relating to financial provision for children may be effective depending on the circumstances. However, it’s worth noting that it’s not possible to contract out of paying child support through any type of nuptial agreement”, clarified Sarah.
Furthermore, if the agreement stated that “For example, you all agreed Great Uncle Andrew is not a suitable person to be alone with a baby when you were together, that may provide important evidence about his suitability if you were to separate later”, explained Anita Mehta, barrister at 4PB.
However, it certainly isn’t clear cut. “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’ under the Children Act 1989. As what is in a child's best interests is likely to change over time, courts are unlikely to hold parents to such agreements”, added Rebecca.
It’s a similar situation were we to live in New York. Heidi Tallentire, a partner at Krauss Shaknes Tallentire & Messeri LLP in New York, explained that despite babynups appearing to be a fad state-side, they are unenforceable. “What’s the consequence of violating it? Divorce? Breakup? One cannot force someone to live up to their responsibilities as a parent, except financially through child support.”
Despite this there might be value in discussing expectations before the baby arrives. “The spirit of a 'baby nup' is to encourage equal co-parenting. It seems sensible in theory, focusing the minds of expectant parents whilst they still have the time and energy to have important discussions”, said Jazmin. Alex Davies, partner and head of family at law firm Cripps Pemberton Greenish agreed, “what is undeniably positive is that couples looking to become parents are considering such things before a baby is born or, in some cases, even before they agree to bring a child into the world. This is surely a good thing that adults are thinking of such things in advance, although no one of course can pretend that babies have read the agreement and are willing to comply!”
So ultimately, although babynups are not legally enforceable - and you can’t hold your partner accountable for not waking up for that nappy change – it might be a useful exercise for some couples to set expectations in advance; and depending on the provisions selected they may have some sway further down the line.
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