Do Cohabitation Agreements and Postnups make your relationship stronger?
I learned more about how to have a healthy relationship with my children’s father through having to co-parent in separate households than I did when we were together. But there are easier ways to learn those lessons.
By accessing the same level of professional and holistic support and guidance that couples benefit from when they take a healthy route through divorce, those of you who are wanting to create a Postnuptial Agreement or a Cohabitation Agreement can make future provisions for your children whether you relationship stays together or not.
But most of all, the process itself can be very healing and empowering. I believe that creating a Cohabitation Agreement or Postnup can actually strengthen the relationship.
But how can you take the different aspects of your lives together and put them into a mutually agreed contract, whilst making that process one of vision and excitement for the future?
Well for a start, don’t think about it only as a ‘what if’ scenario of breakup. Doesn’t it make sense for all couples with children to create a Life Plan for themselves, full of their hopes and dreams – but with some provision for the ‘what if’ scenarios?
How to begin?
The focus should be on the life you want to create together – your hopes and dreams and plans for the future – but also to look at how to keep your family strong if you should chose, for whatever reason, to live apart at some time in the future. This could be caused by wanting to live in different countries, because of different values, because of mental illness in one of the couple, or any other factor that happens in so many relationships, despite the best intentions to stay together.
How do we make sure we don’t end up arguing and breaking up whilst trying to create the Agreement?
Well if you haven’t worked with a relationship counsellor or a coach before, now is a good time to start. Learning how to communicate clearly and without making each other feel attacked or insecure is a powerful thing to learn and will be a great investment in your relationship going forwards.
The very same experts who can help a couple break up amicably, can also help them to work better as a team when they are together.
“Couples come to me for all different reasons and at all different phases of their marriage. I am able to take crisis couples and help them through the journey of whether they wanted to stay together or not, and then if they wanted to split up I am able to help them come to a place where there is no anger, so they can separate and breakup their assets and set up homes for their children separately, or if there were no children they could part as friends and not see it as a mistake or like a scarring – but rather as an experience or a stepping stone in their lives.” Caron Barruw: Psychotherapist
Experts like Caron can help couples to communicate effectively and build a plan going forwards that is based on real understanding of each other’s needs, and the confidence to express that clearly with each other on an ongoing basis.
If you need some help negotiating aspects of access to the children and creating a draft parenting plan then a parenting coach would be helpful to remind you, for example, that very young children don’t benefit from being shared from home to home but are better remaining in the same home and the parents moving in and out. There is no point being creative about how you would co-parent without taking into account the financial aspects – and getting quality financial advice to ensure that your plans are realistic – but also that your children’s needs will be catered for rather than just your own.
Both parents should have the right to spend time with their children, but the children need their best interests represented as well. Once again, the very same experts who have experience supporting couples through breakup, are best placed to advise on parenting and emotional issues when creating a Cohabitation Agreement.
“I do have a lot of sympathy for the parents themselves (who are often reeling from the shock and turmoil of emotions caused by the split). For this reason, I would always urge someone in this situation to seek professional help to get their emotions and behaviour under control so that they can do their best to protect the children from any unwarranted distress.” Vivienne Smith: Transformational Coach
Clarity of thinking and making the process feel fun and empowering can be the result of working with a coach, and can transform the experience of creating a cohabitation agreement or a postnup from being a financial backup plan into the creation of a whole Life Plan.
Part of the process may require working individually with coaches or using transformational healing techniques that will help you to build your confidence and reduce blocks and fears that are holding you back. It takes confidence and vision to be able to create a vibrant Life Plan with your partner – which includes the different scenarios of what you want to happen if certain circumstances arise.
“A need for increased confidence, stronger self-worth and self-esteem seem necessary but sometimes they appear out of reach… EFT works at a conscious and subconscious level. It clears negative experiences from your past so that you change your emotional reactions today.” Susan Cowe: EFT (Tapping) practitioner
Should I get legal advice?
Yes! Apart using the correct wording in the document to make it a “Deed” so that it has some legal standing, it will stand up more if you have independent legal advice prior to signing your agreement.
“I would always recommend that the client has at least one legal consultation before planning a pre or post nup or co-habitation agreement, to establish what should go in it and how best to ensure that it is going to be legally binding. The huge saving in legal costs that an agreement can bring more than justifies the £100 – £200 it would cost to get initial advice even if the client decides to prepare the document themselves or use a template. I always recommend that my clients have a pre-nup (if they are planning to remarry) or a co-habitation agreement. It is money well spent.” Nadia Beckett, Beckett Solicitors
Too hot to handle?
If it’s getting a bit heated and difficult or you just need a third-party to help you decide how to structure the Cohabitation Agreement – then using a Mediator is an excellent solution.
Mediation has a powerful role to play in supporting couples who need to come to an agreement without resorting to a court battle, which for a cohabiting couple will usually be a pointless exercise. No automatic right to a pension split. No automatic right to half the house or the splitting of assets. If there is no co-habitation agreement to base a judge’s decision upon, then court action could be costly and leave a main carer of children with little more than they would have got before going to court: statutory support from the working parent but no spousal maintenance, and no claim on any property or pensions that they have not got their name attached to.
I asked Mediator Kim Beatson of Anthony Gold Solicitors how mediation can help separating couples who are not legally married:
Former cohabitants will not necessarily be pursuing Court proceedings and their claims against one another are much more limited. Nevertheless, a mediation summary may be converted into a contractually binding document. One obvious example is a partnership agreement between former business partners.
Even in more ordinary circumstances a mediation summary for former cohabitants is a template for the future. It enables the couple to move forward with their lives and the future welfare of any children, having agreed matters and going forward to implement their agreement”. Kim Beatson, Anthony Gold Solicitors
Mediator Wendy Still of Stephen Rimmer LLP also sees mediation as being empowering for all couples experiencing separation:
“Mediation helps the parties reach an agreement which is suitable to meet their needs rather than a court directing what will happen in theirs and their children’s lives, and as they know what will work best for them, it’s more appropriate for them to decide how their lives will move forward.” Wendy Still of Stephen Rimmer LLP
Mediation & Collaborative Law to create an Agreement
In the same way that Mediation can help cohabiting couples to split in a healthy way, Mediation can also be used to help them to create a Cohabitation Agreement. The agreement reached can be turned into a legal document that is binding in the same way as a Partnership Agreement between business partners is legally binding.
But what if there are complex financial or inheritance issues that can’t be agreed on? Or one of you may want to move abroad with the children if there was a split?
A financial planner can help you understand the different options, but if you can’t agree and for whatever reason, you would prefer to have legal advice at hand, then Collaborative Law provides a good framework for keeping those discussions amicable.
Kim Beatson is also a Collaborative Lawyer, and she recommends the collaborative process for resolving disputes over property and children matters:
“Collaborative law has to be an attractive option for former cohabitants where arrangements for children are concerned and particularly disputes over property. Currently, former cohabitants only have recourse to the Trusts of Land and Appointment of Trustees Act (TOLATA) and Schedule 1 of the Children Act. The former is expensive and the case law shows the outcome to be entirely unpredictable. The latter only covers financial provision for children and the outcome may be harsh to the primary carer. This is particularly so where there has been long term cohabitation and the primary parent has suffered financial consequences such as loss of career and pension rights.
The collaborative law process enables the couple to look to examine their own idea of fairness as between the adults and also to ensure a good parenting relationship going forward.” Kim Beatson, Anthony Gold Solicitors
Collaborative Lawyer and Mediator John Stebbing also believes that Cohabitation agreements should be more common:
“You will organise all your family celebrations….. well, why not organise your whole lives through agreement too? A Cohabitation Agreement will do this in a fail-safe way. It is so much more reassuring that if the Cohabitation adventure sadly ends, you and your partner know exactly what is to happen to the assets you have acquired. Potentially the visit to the lawyers and all the costs involved, can be avoided. You will both know where you stand. Agreements prior to Cohabitation, or marriage, even after a split, are perfect examples of a healthy collaboration. To collaborate together to reorganise your lives, and give those agreements legal weight – this makes obvious sense. The Collaborative Law model is there for you to use, so don’t hesitate to find out more about it.” John Stebbing, Stephen Rimmer LLP
If we just can’t agree?
Family arbitration can be a useful resource for cohabiting couples who are splitting up, where a legal decision on a financial matter is required that the couple are unable to agree on between themselves. This option of engaging an Arbitrator to resolve a particular issue can then allow a Mediation process to continue until all matters are settled, avoiding any need to go to court.
“There is still a degree of ignorance amongst solicitors, barristers and mediators about FamilyArbitration and a mistaken view that Arbitration is just for rich people. That is not the case and ultimately it can actually work out cheaper than going to court as the parties have much more control over the process. Unfortunately family Arbitration cannot be used to resolve disputes over children.” Nadia Beckett, Beckett Solicitors
Arbitration can be a valuable tool in the divorce process – and also in giving a final decision on an area of disagreement between a couple who are creating a Cohabitation Agreement or Postnup. Usually it would be a complex financial issue for which a financial planner may have given the couple a range of options, but they just want an expert to decide for them what should be included in their agreement. That is where the Arbitrator can be called in to provide a decision that can be made legally binding.
When I separated from my children’s father, I did not know that Mediation, Collaborative Law or Arbitration even existed. I didn’t know that working with a relationship coach or parenting experts could provide me with such powerful tools for the future. I didn’t know that I could talk to financial experts to help me make a plan for our family’s future.
I believe it is time for couples with children to become more conscious about how to protect their family’s future. If they get married, then get a Prenup – or at the very least a Postnup. If cohabiting, create a Cohabitation Agreement. It is not unromantic to be able to honestly communicate and converse with the person you love about every day details. If you don’t feel comfortable doing that, then bring in the experts to help you.
If I had created a cohabitation agreement, then the sudden breakup of my 10 year relationship would have been far less terrifying and stressful.
My advice is not to go into creating these agreements in a state of fear for the future, or with a pessimistic mindset.
When I created a Will, I was not considering dying just yet. But I would not feel a responsible parent if I did not put that provision in place for my children’s benefit.
A well drafted clearly worded agreement can in fact give great clarity and peace of mind to couples and avoid the large legal bills that can flow from a dispute if expectations are not defined from the outset. Rather than cause conflict, it can in fact help couples clarify what they expect from the relationship and plan for significant events such as the birth of a child or ill health.
One would not give a second thought to taking out an insurance policy – and a Pre or Post Nuptial Agreement or Cohabitation Agreement should be viewed as an insurance policy to avoid future litigation and dispute.” Samantha Jago: RHW Solicitors
A Cohabitation Agreement does not need to be focused on who gets what if the relationship comes to a close. I believe it should be focused on creating an exciting Life Plan for the family as a whole, and if – and only if – the relationship should end, then how best will the welfare of the children be protected. Caring for your children, planning ahead for all eventualities, is an empowering process, not a depressing one.
If the worse case scenario is that in 10 years time you are successfully co-parenting, living apart whilst your children feel equally loved and cared for by both parents, who have an ongoing mutually supportive relationship – and that situation is reached in part through having planned how to navigate what otherwise could be a process driven by anger and emotional pain – then that is not such a bad safety-net to be putting in place. Is it?