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Hannah Gannagé-Stewart

Deputy Editor, Solicitors Journal

Marriage prep bootcamp: negotiating a prenup

Marriage prep bootcamp: negotiating a prenup


Putting a pre-nuptial agreement together causes almost inevitable tension on a couple about to embark on a lasting relationship, but there are ways of taking the stress out, says Joanna Harrison

It’s that moment where 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 prenup.

On the one hand they have to negotiate a serious agreement with potentially serious consequences, while on the other they have to cultivate positive feelings about an impending marriage. 

It’s a very hard act for a lawyer to pull off and a situation which could really be helped by bringing a relationship counsellor 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 agreement.

I suggest that solicitors 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 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? 

Intense questioning  

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 prenup 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. 

A prenup 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 are our 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. However, 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. 

As a consequence, 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 prenup.

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 include: feeling under pressure from the client, taking the case home (mentally), feeling a particular aversion to working with this case, and having repeated conversations with the client where there is a feeling that ‘something isn’t getting through’. 

Making it happen

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

Here are a few suggestions: 

Being in tune - Obviously it helps if the lawyers acting for the couple can be in tune about the couple’s need to get some help and both suggest it. 

Making it normal - Normalise 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. Something along the following lines: “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”. 

Professionals to recommends - Have someone that you 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 the process - Explain 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.

Case study: Christina and Ben 

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 the lawyer to just 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 two 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. 

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.

Joanna Harrison is a couple therapist at FLiP and a former family law solicitor