Reconciliation agreements – another useful US Import?

• Reconciliation contracts are essentially post-nuptial agreements. Couples use them to reset relationship expectations and protect assets if the reconciliation fails.
• US reconciliation contracts often include non-financial clauses such as relationship behaviour, childcare expectations and intimacy schedules. UK courts tend to view such clauses as aspirational rather than legally binding.
• Reconciliation agreements can help avoid future legal disputes but should be approached with caution.

As all keen (and even not so keen) observers of celebrity couples are aware, shortly before Beniffer collapsed like a celebrity supernova, Rory McIlroy and his wife Erica, having seemed set to do the same, blindsided the tabloids by getting back together. In doing so they introduced the British public to a concept about which most had been previously unaware: the reconciliation contract. 

So, what is a reconciliation contract, and does it stand any chance of being recognised by the courts on this side of the pond? Well, as with prenuptial contracts, these started out as a distinctly North American phenomenon, no doubt invented by Californian divorce lawyers, who have always been creative in the ways in which they are able to assist their demanding clients. The idea is that not all separating couples stay separated and after each of them has spent enough time with their respective therapists and lawyers they may start to think that the alternative of spending time with their spouse is not as bad as they first thought, particularly if they can reset the ground-rules for their relationship going forward. And how better to do this than by pledging their renewed commitment to one another in a contract that, if broken will at least have the advantage of setting out what should happen if they do change their minds again and split up permanently? 

A reconciliation contract is, therefore, no more or less than a post-nuptial contract and, as such is a rather more familiar concept in English and Welsh courts than it first appears. In fact, Marriage Settlements have been recognised here since before the 18th century and postnuptial agreements were given recognition by the Privy Council before prenuptial contracts were recognised by the Supreme Court upon the basis that they were effectively a type of Marriage Settlement. As with prenuptial agreements, a postnup (and hence a reconciliation agreement) will be given substantial weight by the court provided there has been full financial disclosure, independent legal advice, lack of coercion and the agreement is basically fair. 

At this point, it should be noted that there is a distinct difference between what a US-based lawyer might think appropriate to put into such an agreement and what an English lawyer is likely to advise. Primarily, both lawyers will concentrate on the financial division that will be made between the parties on divorce and the extent to which assets or asset classes are protected from claims. However, even on a prenup a US lawyer may well include lists of expectations that each client has of the other at the start of the marriage such as how joint accounts and mortgages are to be funded and what contributions are to be made to house running costs to who is going to take out the garbage and even how often the couple are to be intimate together. Expectations about future childcare can also be found in such documents as can clauses that have the effect of denying any alimony in the event that a party is unfaithful. These terms are routinely enforced by US courts (with parties sometimes being awarded damages for breach). This is all rather alien to the English courts. 

In the case of US reconciliation agreements, the same applies and many of the same types of clauses will find their way into such agreements. In particular, one might expect to see clauses about commitments to attend couples’ therapy, how much time each party will spend looking after the children, the acceptable use of social media, rules for contact with the press and what behaviour is acceptable when the couple are on holiday together for example not spending all day in contact with the office. While such clauses might also be inserted into an English law reconciliation agreement, this would be upon the basis that these were aspirations and that the court, if ever asked to do so, is likely to ignore any such provisions and will not allow for a forensic investigation as to whether such terms have been breached. Nor is an English court likely to condone any suggestion that the financial settlement should be susceptible to being increased or decreased as a result. Even provisions relating to child contact are not going to be upheld by the English court unless deemed to be in the best interests of the children. 

So how useful are such agreements in an English law context? The answer will depend upon whether there is a pre or post-nuptial agreement already. If there is, then unless this needs a complete overhaul, it would usually be sensible to leave this in place and not try to renegotiate it (although this is obviously a possibility). If there is not, then a reconciliation agreement could help to avoid a costly dispute over assets in a future divorce if the reconciliation fails. That said, negotiating such an agreement is always going to require a great deal of diplomacy and careful handling as any disagreements may well entrench the separation rather than heal it and expectations are going to need to be managed as to the likelihood of the English Family court paying any attention to the more aspirant parts of such an agreement. Accordingly, this is not necessarily the best time to be hiring a rottweiler. 

Toby Yerburgh is the Head of Collyer Bristow’s Family team. He advises on all areas of private family law including financial applications, separation agreements, judicial separations, contested and non-contested divorces, jurisdiction disputes, injunctions and applications relating to children. He has particular expertise in prenuptial agreements.