13th May 2019

How to take the stress out of pre-nuptial agreements

By Jo Harrison

It’s that moment when he gets down on bended knee, puts his hand in his pocket and pulls out….a pre-nuptial agreement – otherwise known as a real corker of a passion killer.

Cut swiftly to the family lawyers and there is a huge pressure on them when faced with negotiating a pre-nuptial agreement. On the one hand they have to negotiate a serious agreement with potentially serious consequences, whilst on the other they have to cultivate positive feelings about an impending marriage.

It is a very hard act for a lawyer to pull off and a situation which could really be helped by bringing a relationship counsellor like Jo Harrison of Family Law in Partnership into the process, perhaps even before the legal negotiations start. If there is a separate therapeutic space for the couple to think through and detoxify some of what has to be done in the legal sphere, then the lawyers can actually get on with the job of negotiating the pre-nuptial agreement.

I suggest that solicitors should be frank with their clients in advising them to get the help of a relationship counsellor, as a key part of going through the pre-nuptial agreement negotiation process.

Why, a newly engaged couple might ask, would they need counselling at this time of their life? Surely it’s only when things are going pear-shaped with the relationship.

For a start, a pre-nuptial agreement puts a strain on a couple, in its task of having to look ahead to a time where they might split up. With this in mind, a counselling session can offset some of the strain. In addition to this, the process of negotiating a pre-nuptial agreement requires a couple to work hard at some of the key questions and tensions of any adult loving relationship. By getting some positive help with these, a couple can be really supported in their relationship. An agreement with counselling alongside has something of the feel of the boot-camp equivalent of marriage preparation classes because it requires a couple to focus intensively on some of the key questions of a committed relationship – namely

  • What are the differences between us?
  • How do we communicate about our different needs?
  • Who has more power in the relationship and how do we feel about that?
  • How anxious do we feel about making a relationship, what fears do we have about commitment, what our are expectations of how this relationship will go?
  • How much can we trust each other?
  • Are we going to have children? What is having children going to mean for us?
  • What is your family of origin like and how much part are they going to play in the dynamics of our relationship? (Also known as “navigating the in-laws”)

Lawyers don’t necessarily need to get involved in the answers to this, but I would say that where a couple don’t attend to these questions either with each other or with the help of a professional, then the lawyers will get pulled into playing out these difficult conversations on behalf of the couple and the pre-nuptial agreement may become more antagonistic. Indeed the couple might be avoiding negotiating these essential difficult questions between them by getting the lawyers to have them, which while convenient, may not be good for the long term health of the relationship.

It also has an impact on the lawyers – just as when a family lawyer gets caught up in the difficult dynamics of a divorce, so the lawyer can get powerfully caught up in the dynamics of a couple negotiating a pre-nuptial agreement. Signs that a lawyer is getting caught up in the intimate dynamics of a couple relationship and that a couple really need additional professional help may include:

  • Feeling under pressure from the client
  • Taking the case home (mentally)
  • Feeling a particular aversion to working with this case
  • Having repeated conversations with the client where there is a feeling that “something isn’t getting through”

So – what can lawyers do in practice to encourage this multi-disciplinary way of working for the good of the couple and themselves?

  • Obviously it helps if both lawyers acting for the couple can be in tune about the couple’s need to get some help and both suggest it.
  • Normalising the process of going to get some counselling. Rather than suggesting that a couple get some help when the negotiation is in crisis, make it a standard part of any first meeting about a pre-nuptial agreement e.g. “We always think it is a good investment for a couple in your situation to go and have a session to think about how you feel about doing a pre-nuptial”.
  • Having someone that they can recommend for the couple to go and see (rather than just saying generically “I think you need to go and see a therapist”).
  • Explaining that this isn’t about getting the couple into long term therapy – it may just be a case of having one or two consultations to get some of the feelings off their chest about what it’s like to be pitched on either side of a legal negotiation.

A case study:

Christina and Ben approached lawyers to negotiate a pre-nuptial agreement, ostensibly insisted on by Christina’s father. Ben explained to his lawyer that he was feeling pretty resentful about the whole situation and that he and Christina had had some rows about it. He asked his lawyer to get the whole thing done as quickly as possible as it was so unpleasant. At this point the lawyer suggested to Ben that though they would be able to act swiftly on their behalf, in fact it might be of help for Ben and Christina to think about some of the tension that had come up with the help of a couple counsellor.

Ben took up this suggestion and they went for a consultation with a counsellor suggested by Christina’s lawyer. In the counselling Ben was able to bring up some of his resentment and talk it through with Christina who was able to see in a different and more understanding way why he felt so angry. They made good use of the sessions and agreed to come back for 2 more meetings, which also gave them a chance to bring up some of the concerns that they had about how they communicated generally with each other and they used the sessions in a “marriage preparation type way”.

From the lawyers’ point of view, the heat seemed to come out of the pre-nuptial agreement negotiations and things moved relatively smoothly, albeit with an acknowledgement that it wasn’t an easy thing for the couple to do and that it had had an impact on them both.

What this case study shows is how the couple could be supported and protected both legally and emotionally which helped to create a good outcome.

Jo Harrison is a couple therapist at Family Law in Partnership and a former family law solicitor. Clients can meet with Jo for a counselling session at our offices in Covent Garden. This can either be before consulting a lawyer to help plan a way forward (and, as appropriate, Jo can think with the client about how to move forward with the legal process) or, where a lawyer has already been instructed, Jo can provide support alongside the legal process.

Jo also works with couples as follows:

  • Couples who want to explore whether to divorce or how to cope with their divorce
  • Co-parenting issues
  • Pre-nuptial or post-nuptial agreements

Jo can also work with couples who want to invest in their relationship or prepare for making a greater commitment to each other, e.g. getting married or entering into a civil partnership. This work can be tailored to the couple’s wishes and needs. Some might want a structured series akin to a “marriage preparation course” and some may want to use the time to air expectations and concerns. Differences and similarities can be thought about or couples may wish to use the time to think about how they want to behave with each other and what behaviour may or may not be acceptable. By working in this way, it helps to support the couple’s own problem-solving skills.

For further information on how Jo can help you to approach relationship issues, contact Jo at E: hello@flip.co.uk or T: 020 7420 5000.

This article first appeared in Solicitors Journal and is reproduced by kind permission.