I don’t know if it is our gradual acceptance of the place of the pre nup or the glaring lack of protection for couples who choose to live in unwedded bliss, but family law seems to be more about the planning these days.
Are we having children, or not?
This is no bad thing as I am continually amazed at the lack of discussion between couples when entering into relationships. I have worked on too many divorces for couples where they have reached the point where one says “I think it is about time” and the other, in all ignorance, says “For what?” and six months later I am drafting an unreasonable behaviour petition on the basis that one spouse is refusing to start a family. I would have thought that “Do we want to have children at some point in our marriage?” would have been one of the ABCs of ‘Will you marry me?” but I am wrong. Often.
Staying with the baby, theme. Infertility, or rather, how to deal with it, is another relationship breaker. But in this day and age, with couples marrying later, it is not exactly an unforeseeable event so why not discussed? Especially where couples clearly have strong enough views for them to force a chasm between them big enough to end in divorce.
With all my worldly goods, means with the house, pension, inheritance…
I make no secret of my view that a marriage ‘contract’ should be properly explained to couples before they walk down the aisle. It is a status altering contract that creates obligations for the parties, financial and otherwise, that can potentially last for life. Very few people understand this until they are sat in a solicitor’s offices taking advice on the demise of their marriage. Question: “Why do I have to pay maintenance and support her?” Answer: “Because you married her and at that point you assumed obligations to support each other”. As lawyers, we can try to minimise them and we have a duty to consider a financial clean break, but they are there nonetheless.
But getting back to children, I firmly believe separated parents should give themselves a bit of a break sometimes. After all, not all parents who live together agree all the time on how to parent their children. But again, couples rarely consider their different values and goals about parenting children before the relationship breaks down. Most parents muddle along nicely, expanding and contracting depending on the other parent’s strengths and weaknesses.
Stepfamilies are probably the exception as one or more person has usually already developed his or her parenting style and values and this almost immediately rubs up against that of the other and a compromise of some sort usually can be brokered. (To what extent one should accommodate a step parent’s parenting ideas is a whole different discussion!).
Unfortunately, when a relationship breaks down, the differences in people’s priorities and desires for their children can become ugly. Whether it concerns bedtimes, choice of schooling, after school activities, religious upbringing or where children should live, co parenting can become a real challenge post separation where there isn’t that practice of ‘expand and contract’ around the child and each parent wishes, understandably, to minimise his or her own personal involvement with the other parent, at least whilst feelings are raw.
Indeed, surprisingly few people even agree together how to explain to their children that the family will be changing and provide the guidance and reassurance children desperately need at those times, despite loving their children passionately. Sometimes it is just too painful and confusing for the big people to remember what they need to do for the little people who, after all, have no choices.
The Child Contract
A Twitter contact came up with a beautifully simple solution: a Children Contract. A document filled with parents’ goals, pledges and aspirations for children, useful during a relationship but invaluable during separation. How helpful would it be to make this at a time when parents’ can easily acknowledge what the other parent can offer their children, be open about where parenting strengths and weaknesses lie and constructively discuss the points at where values or opinions or inherited issues conflict rather than when each feels duty bound to be all things to the child in question and determined to prove that they can do it his or her own way with minimum involvement with the other parent.
Like a Living Together or Prenuptial Agreement (which, if they touch on children, often deal mainly with financial provision rather than practical and aspirational considerations) the Children Contract can also plan for what should happen in the sad event that parents stop being partners. Where children should live, how time should be divided between parents, what day to day life should look like, how parents should interact, how new partners should be involved and so on. All of these are issues that would be far less confusing for children (and for parents) if they were considered from a place of co-parenting and love rather than hurt and fear.
And that is really why the Children Contract is fantastic idea. A marriage contract lasts until the marriage is dissolved. Parents never stop being parents. A Children Contract is for life.