How can mediation help couples discuss prenuptial agreements?

21 January 2022

Tim Whitney and Connie Atkinson are both mediators and members of a Family Law Agreements Group in which they share ideas and expertise in respect of pre and postnuptial and other family agreements. In this blog Tim and Connie explore the use of mediation for couples entering into a prenuptial agreement.


Mediation is a forum within which a couple can discuss the arrangements for their family with a view to trying to reach an outcome together. The role of the mediator is to help set an agenda and manage and facilitate the discussions. While mediation is usually used by separating couples to discuss the arrangements for their children and the financial arrangements arising out of their separation, it need not be limited only to these issues. 

At the start of a mediation, the mediator will explore with a couple what they want to cover during the sessions and what they hope to get out of the process.  An agenda is set and referred to frequently to highlight where progress is being made. Most commonly, parents want to discuss the day to day arrangements for their children, how holidays will be divided and to agree common parenting guidelines or rules which will be applied consistently across the two homes in which the children will live. When it comes to the financial arrangements, a couple usually want to undertake a financial disclosure exercise within mediation and then discuss how the assets will be divided and whether any additional financial support should be paid.

While those are the most common areas covered in mediation, a huge number of other matters can be mediated, including issues which the court would not necessarily have the time or power to deal with. One of the benefits of mediation therefore is the flexibility of approach; a couple can decide together what they want to address and the point in the process in which this happens.

If required, other individuals can attend some or all of the mediation sessions if the couple and mediator agree that it is appropriate. This may be another professional such as an IFA or the parties’ lawyers or a family member or other third party. This may be useful where a family member or new partner intends to contribute or help facilitate the proposals being made.

Prenuptial agreements

The family court’s position on pre-marital agreements has solidified over the past 10 years and as a result their popularity continues to increase. Although it is not possible to legally bind the court, the case law makes it clear that a Judge should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

There are a number of formalities that should be met if a prenuptial agreement is going to be upheld. These are set out below:

  1. it must not seek to avoid financial responsibility for the needs of any children;
  2. before the agreement is entered into, each party should disclose their financial position to the other, and any other information as would reasonably be considered to be material to a decision by the other party to enter into the agreement;
  3. there should be no vitiating factors present at the time of signing the agreement, such as duress, fraud or misrepresentation;
  4. each party must receive relevant legal advice from a qualified lawyer before the agreement is entered into; and
  5. it should be signed at least 21, and ideally more than 28, days ahead of the marriage.

Although the legal position has developed over the past 10 years the same cannot be said about the process of negotiating and drafting the agreements. Prenuptial agreements should come with an emotional health warning.  At a time when couples should be discussing wedding plans they instead have to focus on what will happen if the marriage breaks down. It can be very difficult reading solicitors’ letters setting out in stark terms what will happen if the relationship fails. It is never going to be possible to remove this emotional strain but mediation can certainly assist and minimise the impact on the couple.

Mediating prenuptial agreements

For the right couple, mediation can be a safe, neutral and productive forum within which to discuss the reasons for and proposals in respect of a prenuptial agreement. This may be appropriate where a couple wish to lead the discussions themselves but would like a neutral third party to assist.

The earlier a prenuptial agreement can be finalised, the better. For most couples the weeks leading up the wedding day are a crescendo of stress. They do not want to be finalising a prenuptial agreement whilst also making decisions on the seating plan, menu choices and flowers. Once the suggestion of a prenuptial agreement has been made, therefore, a couple may wish to make arrangements to speak to a lawyer and also to consider whether mediation may be a suitable option for them.

An experienced mediator should be able to help the couple discuss their concerns and priorities in a safe and supportive environment. Whilst the mediator will not offer any legal advice or suggest that either party’s proposal is better or worse, they will be able to provide legal and other information and help the couple explore their options. They can also provide helpful structure to the meetings ensuring couples discuss all relevant issues.

In discussing a proposed prenuptial agreement in mediation, the couple will also be addressing many of the formalities mentioned above, such as the disclosure of their financial positions and the ability to discuss the proposed terms of a prenuptial agreement and hopefully remove the risk of pressure or duress. One of the other key benefits is that the mediator should help the couple reality test the proposed terms of the agreement. This would usually involve considering the couple’s plans for the future, looking at a number of likely scenarios and cross-checking that the proposed terms would produce a fair outcome.

This can all be done far more efficiently when the couple are sitting in a room together having these discussions directly. The risk of misunderstanding is also minimised when the couple are able to immediately discuss and react to suggestions.

The couple will still need to have independent legal advice in the background and following a successful mediation (again to meet the formalities referred to above).  The mediator will be able to summarise the proposed terms and these can be reviewed by the couple’s lawyers and incorporated into a prenuptial agreement.

Further Information

If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team.


About the Authors

Connie Atkinson is a partner and family mediator in the family team at Kingsley Napley.

Tim Whitney is a principal associate and family mediator in the family team at Mills & Reeve.

Tim and Connie are both members of the Family Law Agreements Group.


This blog was co-written by Tim Whitney of Mills and Reeve.

Latest blogs & news

How can mediation help couples discuss prenuptial agreements?

Tim Whitney and Connie Atkinson are both mediators and members of a Family Law Agreements Group in which they share ideas and expertise in respect of pre and postnuptial and other family agreements. In this blog Tim and Connie explore the use of mediation for couples entering into a prenuptial agreement.

Family Mediation Week – The Future is Bright

As Family Mediation Week draws to a close, I’ve been reflecting on how far we’ve come over the past year.  And I’ve decided to be optimistic.

Mediation, celebrity culture and avoiding the spotlight

As Mediation Week draws to an end, it is worth remembering in this celebrity culture, that another big draw to mediation, particularly for those high profile individuals who want to keep their family matters away from the prying eyes of the media, is that mediation takes place in private, and, if matters can be agreed, never needs to go before a judge sitting in court.

Co-mediation – when two heads are better than one

The traditional family mediation model sees clients agree on the identity of one qualified mediator, and meet with that person together. One of the big advantages of mediation compared to a court approach is the flexibility that can be offered to clients, with a number of mediation models and styles from which to choose. With the agreement of the couple and their mediator, a mediation can be tailored to meet the needs of the individuals and to help them explore different issues with the right level of support. 

Family mediation in a pandemic – the challenges and opportunities for separating couples

The past year has caused each of us to reflect on what is most important in our lives. Family. Friends. Freedom. It has also made us look forward, to life post-pandemic; and this, along with the pressures of lockdown, home-schooling, and everything else 2020 had to chuck at us, has understandably resulted in lots of couples deciding to go their separate ways. 

Avoid courts to lessen the pain of family break-ups

We need to move away from legal disputes for separating families to help to build better relationships and cause less harm. Society’s approach to divorce and separation has to change.  A report published today by the Family Solutions Group calls for a rethink. 


My financial circumstances have changed since COVID-19 – can I vary the spousal maintenance I pay?

If your income has reduced as a result of the coronavirus pandemic, you may not be able to pay the same amount of maintenance to your former partner. This could be short-term or you might be worried the situation could be more permanent. In this blog, we set out some key points to consider if you can no longer afford to pay the spousal maintenance you have been ordered to.

Moving abroad or returning home with children and the risks of child abduction during the coronavirus crisis

Despite the wonders of modern technology helping to keep people in touch during the coronavirus pandemic, many separated and divorced parents who live far from their children are finding life very difficult at the moment. In this blog, we look at some of these scenarios and the questions arising at this unprecedented time for separated parents who either wish to relocate or stop the other parent from relocating overseas (international relocation) or to another part of the UK (internal relocation).

Am I stuck with my divorce settlement after coronavirus?

The coronavirus pandemic is changing the world dramatically. It can feel as though the ground is shifting beneath your feet. If you are recently divorced, or are currently getting divorced, that feeling may be a familiar one. We can’t predict what the health implications of COVID-19 will be for us individually, or for the community we live in, but some economic effects are already being felt by many who have already either lost their jobs, been furloughed or had a reduction in income. In this rapidly evolving environment where people’s financial circumstances are changing, many are asking if their divorce settlement still applies. In this blog, which is the first in a series on the subject, we set out some preliminary guidance.

Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis

The coronavirus crisis has brought about some of the biggest challenges to our lives, health and freedoms that many of us will ever experience. The pressures we face are significant while we also do our best to manage the impact on our relationships, mental health and financial circumstances.  It is important that we all try to communicate and do what we can to keep ourselves and our loved ones safe and happy while acknowledging that the ways in which we can do this are very different to what we are used to. In this blog, we consider alternate dispute resolution methods (including online) that are available to help couples navigate a separation either with the support of a solicitor or on their own during this time.

COVID-19: overcoming the challenges of co-parenting for separated and divorced parents

Following the government announcing restrictions last night for staying at home and away from others, further details have been published about the “lockdown” restrictions, which confirm that “moving children under 18 between their parents’ homes” is one of the permitted reasons to leave home. 

Reflections on The Split – S2, E6: …and that’s a wrap

Tuesday saw the emotional final episode of series 2 of The Split which involved many of the key characters going their separate ways. In this blog, Connie Atkinson reflects on how to support children through separation together and ways of resolving practical arrangements on divorce.

Reflections on The Split – S2, E4: Child arrangements, adoption and a potential sex tape scandal

This week’s episode of The Split began with high drama between Hannah and Christie following the secret that Nina let slip at the end of the last episode. The issues between Hannah’s client, Fi, and her husband, Richie, continued to develop so Hannah and Christie were forced to work together despite their personal differences. Fi and Richie couldn’t agree on the arrangements for their three children so a joint meeting was arranged with their lawyers.

The advantages of mediation in resolving family disputes

Today marks the end of family mediation week. In this blog Connie Atkinson summarises the mediation process and, as considered in our historic blogs, examine the key benefits of mediation and other methods of dispute resolution as a way of resolving the practical arrangements following separation.

Using arbitration to settle family disputes – less Hollywood, more privacy

Paul Hollywood is a highly public judge on one of Television’s most popular shows, with over 6 million viewers watching him and his taste buds push Great British Bake Off contestants to tears, frustration and occasional joy but when it comes to his divorce, he and his wife of over 20 years have chosen for their financial arrangements to be adjudicated in private.

Co-parenting with my ex - how do I do it?

Parenting is hard. Working out how to parent with your partner is hard. Who does what, when and how, where the boundaries are – so many small decisions that make up a big part of your child’s life. So how do you co-parent when your partner becomes your ex?

Good Divorce Week: top tips for achieving a ‘good’ divorce (and yes, it is possible…)

Divorce can be a long and difficult process, not just for the parties themselves, but also for family members, mutual friends and, crucially, any children caught in the middle. While it will never be easy, approaching divorce in the right way can help to reduce conflict and streamline the process, allowing you each to move on as respectfully and efficiently as possible. In conjunction with Resolution’s campaign this week, here are our top tips for a #GoodDivorce.

Alternative Dispute Resolution for disagreements over children: if it's good enough for Brangelina...

Brad Pitt and Angelina Jolie's very public breakup has taken a different (and even more regrettable) turn in recent months with newspapers reporting on the apparently 'vitriolic' dispute over their children. The disagreement has allegedly arisen as Jolie is due to start filming Maleficent 2 in Europe while Pitt is committed to a new role in Los Angeles, making regular time with the children a near impossibility for the 'non-resident' parent. In addition, Jolie has claimed that Pitt has failed to provide ‘meaningful’ financial support. It has been suggested that mediation, one form of Alternative Dispute Resolution (ADR), was offered as a means to keep the matter out of court.

Reflections on The Split - Episode 1

Last night we saw the first of a six part series which focuses on the world of divorce.  It is a drama; they use dramatic license to make the show interesting, appealing to the public and to fit into six parts. The show is the first of its kind in this country and it is exciting to see our profession featured in a high profile drama which will provide a platform for family law issues to be discussed. I hope The Split will also give us the opportunity to share our advice, thoughts and experiences from inside the profession.

Reconciliation Contracts – an alternative to divorce?

As I read the stop press news last week about the possibility Angelina Jolie might be pressing pause on her divorce, given Brad’s reported willingness to address his drinking problem, it got me wondering about whether they were considering a Reconciliation Contract which is a popular post-nup tool in the US. 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility