Baby nups – are provisions relating to children in nuptial agreements enforceable?

Practitioners will be familiar with advising clients on nuptial agreements – focussing on ensuring that they will stand up in the future in particular with regard to the principles of Radmacher (Formerly Granatino) v Granatino [2010] UKSC 42, [2010] 2 FLR 1900. It is necessary to check that the parties entered into the agreement freely, that they have a full understanding of its implications and that it is/will be fair. Normally nuptial agreements cover such matters as separate/marital property, inherited assets and gifts, any financial provision in a future divorce and jurisdiction. Clients do sometimes raise the question of whether they can provide for current or future children in a nuptial agreement. Financial provision – maintenance for dependent children The agreement may expressly state that the question of financial support for children is outside the scope of the agreement. The agreement might provide for the mechanism by which any financial support would be dealt with eg by mediation in the first instance or by arbitration. It might provide specifically for financial provision for children, but it would be unusual to do this unless there were actually children already – for instance the quantum of child maintenance to be paid could be included. There could be a general provision that one party will provide financially for any children to include school fees. This might be appropriate in a case in which one party is wealthy and the other party is not, and there is a needs award in favour of the economically weaker party. As additional reassurance, that party would know that the children would be paid for. Some thought should be given as to what that means – not only maintenance for children’s needs and education costs, but consideration should be given to housing, particularly if it is likely that the parents will have a different standard of living from each other.

Currently, it is not possible to prevent either the Child Maintenance Service and/or the court from making an order in relation to financial provision for children. However, where the parties agreed a specific level of maintenance for existing children and a divorce took place without a significant change in circumstances, whilst provision in a nuptial agreement would have no effect on an application to the Child Maintenance Service, the nuptial agreement may be followed if the court had jurisdiction. See for instance the case of BN v MA (maintenance pending suit: prenuptial agreement) [2013] EWHC 4250 (Fam) in which amongst other provision, the husband was to pay £24,000 for each child and school fees as set out in the pre-nuptial agreement, although this element did not appear to be disputed.

Inheritance Act claims

Often the motivation behind a nuptial agreement is a desire to protect either or both parties’ assets in order to leave inheritances for children from a previous relationship. On the basis that the Radmacher principles as set out above are followed, and in particular that the needs of the economically weaker spouse are provided for, a nuptial agreement should be effective in protecting assets in order to provide for children of a previous relationship even if they are no longer financially dependent. In any event, a person embarking on a second marriage would be well advised to consider a pre-nuptial agreement in order to be in a better position to protect the estate against an Inheritance Act claim by a former spouse or children.

Earning capacity and childcare

How to deal with childcare – whether it is division of labour between the parents, family support, or financing outside help – can be a fraught issue but it is very important and one which should be discussed with the possible repercussions of any decision thought through. Having children may affect either or both parties’ earning capacity both short and long term. As set out below, it is unlikely that provisions in relation to children which go to their practical arrangements (in particular how they share their time) will be included in a pre-nuptial agreement or that they would be enforceable if they were. However, in reality if one party, who may be the economically weaker one at the outset, gives up his or her job in order to look after children, it may be appropriate for the financial detriment to be taken into account.

One of the things to think about is how future maintenance is to be dealt with. The parties can leave this to be considered at the time of the divorce. The court (if the parties could not agree) would take into account earning capacity, and any increase in that capacity which it would be reasonable to take steps to acquire. Or the parties could try to work out how much maintenance should be paid (normally index linked) based on various assumptions. Earnings up to a certain level could be disregarded, although that may be seen as an incentive only to earn up to that level. It is possible expressly to agree that compensation is excluded – compensation does not have to be limited to loss of earnings attributable to child care, but this is often the context. Compensation is in practice often difficult to obtain in any event, and there are factors which can make it potentially contentious and evidentially difficult – would the non-working parent have gone on to have a stellar career? There is also the difference of view as to whether someone should be ‘compensated’ for looking after children if they have two nannies and a housekeeper, whilst the earner is working a 100 hour week as against the question of whether it is fair to split capital equally which meets needs on both sides but for the earner to exit with an earning capacity on top?

In practice, if the parties do not have children when the nuptial agreement is negotiated, they may not know how they will want to arrange their lives if they do have children. They may think that they will both carry on working full time, but find that the reality is not what they want. It is wise in any event to have these discussions to avoid assumptions being made about whether child care is to be divided equally or not. Best laid plans may be thwarted by unexpected events – illness for instance of either parent or child.

Practical arrangements for children

Any decision made by a court in relation to children’s upbringing: with whom they should live, where they should live, how they should be educated, their health – both physical, mental and emotional, is governed by the welfare principle. The court would need to look at what was in their best interests at the time, in accordance with the welfare checklist in the Children Act 1989. It is not possible to contract out of this. This is difficult as parents or prospective parents may have to make life-changing decisions without knowing how some of those decisions in relation to their children may play out. Take for instance an Australian woman marrying an Englishman. If she is to come to England and leave her home and family, she may well want the security of knowing that if they had children, she would have his permission to take them back to Australia. She of course would be free to leave, but on the basis that the children were habitually resident here, if he did not agree at the time she would need the court’s permission to take the children back to Australia and may not be successful in obtaining it. She may want a pre-nuptial agreement to provide that in the event that they had children, her husband would agree that they should go back to Australia. This would not be enforceable as a permission to remove case would have to look at the children’s welfare at the time. Parties may have strong views on other aspects of children’s upbringing, such as should they be initiated into any particular faith or denomination; taken to church/synagogue/mosque; what is their position on vaccinations; what should happen about grandparents’ contact with the children; what about vegetarianism or eating chocolate? Again, a pre-nuptial agreement on any of these welfare matters would not be binding. However, giving consideration to these and working out what their position is on them before embarking on parenthood might be beneficial as these issues are likely to come up during the marriage if it is of any length following the arrival of children, rather than something which happens after a separation. Communication on these matters is often helpful, particularly discussion whilst the parties are getting on well and before the issues arise and become contentious.

Severability

It is usual to include in a pre-nuptial agreement a provision that any unenforceable provision is severable to avoid tainting the whole document. However, including something which is clearly not enforceable is likely to be pointless, and may be unhelpful as it can indicate an imbalance of power/duress. For example, it would be unusual to provide that following separation one set of parents would have no contact with the children and the other set could see them every weekend. It would be unlikely in any event that such a provision would be agreed unless both parties had seriously fallen out with one party’s parents.

Conclusion

Accordingly, non-financial provisions in relation to children will be trumped by the court having to prioritise the welfare principle if there is a dispute after divorce. However, discussing issues and avoiding assumptions about how children are to be brought up, and whether one parent’s career is going to be side-lined, must be wise whilst accepting that theoretical ideas may well have to be revisited when faced with the reality of child rearing.

Sarah is a partner in the family law group at Charles Russell Speechlys. Sarah advises about financial arrangements following relationship breakdown, particularly in cases involving offshore trusts and business assets. She is experienced in dealing with complex children cases, and drafting nuptial agreements. She is a mediator and Fellow of the International Academy of Family Lawyers.

This article was first featured in Volume 51 of the December 2021 edition of Family Law published by Lexis Nexis.