Can we include childcare arrangements in a pre-nuptial agreement?

Whilst it is possible to include agreements regarding the financial provision to be made for your children, a nuptial agreement should not be used to record arrangements regarding their day-to-day care or living arrangements. 

Financial provision for children in a pre-nuptial agreement.

Financial provision for children in a pre-nuptial agreement can include a monthly amount of maintenance or payment towards school fees or other items of financial provision, to include housing. 

It would however be unwise to include provision for any future children due to the risk of getting their needs wrong and the court departing from the terms of your agreement.  In Radmacher v Granatino [2010 UKSC 42] the Supreme Court said it would not be fair for a pre-nuptial agreement to prejudice the reasonable requirements of any children of the family.  It is possible to leave the financial provision for a child to be decided following the birth of a child, or it can even be left as an issue to be decided on the divorce itself (usually subject to principles in the pre-nuptial agreement setting out the parties’ expectation of need and the type of financial provision that may need to be provided).  Couples can include a review clause in their agreement to cater for any change in circumstances following the birth of a child. 

Whilst it is possible to include financial provision for children, it is not possible to ‘oust’ the jurisdiction of the court or of the Child Maintenance Service (CMS) to make an assessment.  It is not possible to ‘contract out’ of applying for a CMS assessment.  If however an application for financial provision is made on a divorce, provided the financial provision in the agreement meets the children’s needs the court would be unlikely to depart from the agreement.   

Planning childcare arrangements

It is very sensible for engaged couples to discuss their intentions regarding having children as well as their views on the upbringing of children to avoid potential conflict arising over issues such as education, medical treatment and culture and religion during the marriage.

It is also sensible to discuss how the childcare is likely to be organised and what expectations or views you both have regarding working (or not as the case may be) post children and the use of nurseries or nannies.  If you have an international connection, you may also want to consider your long-term living arrangements or need to factor in travel for work or to facilitate contact with wider family members who live abroad. 

Why there are restrictions on including childcare arrangements in a pre-nuptial agreement

Whilst having a ‘plan’ on how you will parent your children is to be encouraged views may well change overtime or the plan may have to change due to a change in circumstance. 

If on separation or divorce parents cannot agree the care arrangements an application will need to be made under the Children Act 1989. In deciding what orders to make the child’s welfare will be the court’s paramount consideration. 

The court will apply a checklist of factors (called the welfare checklist) and consider the wishes and feelings of the child, the child’s physical, emotional and educational needs, the likely effect of any change in circumstances, the child’s age, sex, background and any characteristics which the court considers relevant, any harm which the child has suffered or is at risk of suffering and the ability of each parent of meeting the child’s need. 

How can Watson Morris help with childcare arrangements and pre-nuptial agreements

At Watson Morris Family Law we actively encourage couples to talk about issues that may influence their attitudes or behaviour both now and in the future.  Our goal when preparing nuptial agreements is to help our clients lay the foundations for a strong and long marriage. 

With this goal in mind, we have developed our 2Unify service to offer our clients relationship coaching alongside our legal expertise. For more information on our 2Unify service.

Written by Caroline Watson

October 22, 2022

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