Pre-nup, post-nup or “no-nup”: building a relationship-positive practice

As Resolution members, we have an amazing opportunity to bring together the disciplines – lawyers, mediators, family consultants, coaches, financial professionals – to help couples make good decisions about doing life together

I am a divorce lawyer who believes in love. Sure, I spend most of my time working in the world of “break-ups”, but I see an increasing number of couples looking for legal and mediation services to foster a positive relationship. Many of them are well and truly in love – still feelin’ it – and others are facing serious relationship challenges, but wanting to find a way to the other side – together. Most are or have been working with therapists, and are looking for help to plan for their futures. I love the opportunity to help couples stay together.

As Resolution members, we have an amazing opportunity to bring together the disciplines – lawyers, mediators, family consultants, coaches, financial professionals – to help couples make good decisions about doing life together. From my vantage point in Canada, I see more and more couples demanding relationship-friendly professional services that allow them to co-create the “terms and conditions” of their future. They usually want to be informed about legal rights and obligations on separation, but they also want to explore how they will manage financial, family/parenting and work/life decisions in their lives together. Younger generation clients are sending a clear message that they “don’t want their parents’ divorce” (or, in many cases, their parents’ marriage!)

Current family law discussions in England & Wales highlight the need for legislative clarity regarding family property rights on divorce, and the need for laws to be created to assist couples who choose not to marry (or are not permitted to marry) – especially if they have children. As a Canadian lawyer, I work in a changing legal landscape. Across our country, parenting and support laws are essentially the same for married and unmarried couples. Property rights, governed by the provinces, are different. Most provincial legislation covers family property rights for married couples only, but four provinces have brought married and unmarried couples under the same family property laws. Anticipating a further extension of unmarried property rights across Canada, more lawyers are promoting cohabitation agreements, marriage contracts, pre-nups and post-nups.

One would think that the lack of clarity in the law, or the lack of law, would lead couples to their solicitor’s offices in droves. But most couples do not choose to engage in discussions about one of the most legally consequential steps in their lives. Many couples say they do not want lawyers involved – at all. What can we learn from all this resistance?

Client perceptions v professional offerings

Speaking as a lawyer: when we promote what I call “Relationship Agreements”, I think the unintended message is, “You need our help to protect yourselves from each other and the potentially dire future that awaits you.” Add to this the public perception and media treatment of divorce lawyers, and the tabloid take on “pre-nups” – it’s no wonder couples are reluctant to engage with us.

Therapists and relationship mediators naturally work with the emotional/psychological aspects of couple conversations, but cannot provide the legal framework to help clients decide on and record their legal commitments. Financial professionals find themselves having money conversations with clients in isolation from the legal and psychological support that would be so beneficial. Solicitors are often not comfortable facilitating the relationship conversations, or do not see that as our role (and, to be fair, neither do many of our clients.)

Despite the collaborative values and sincere efforts of so many Resolution members, we do not (yet) have an accessible and efficient interdisciplinary approach to meeting the needs of couples starting out. So if we are not working together (yet), how can we help more clients get all their needs met?

More asking, less telling

Many of my mediation clients tell me, “We don’t want to get lawyers involved”. A few years ago I started asking, “What are you worried will happen if you get lawyers involved?” Their answers? “We don’t want to be told. We want to design our future in a way that aligns with our values. We want to work with a professional who sees us as capable and honourable people. We want our agreement to reflect who we are, and not how some divorce lawyer sees us.”

When I asked for feedback about our work together, they said they appreciated my “great questions” and how interested I was in their hopes and concerns. They felt supported by the preparation I gave them to do – in their own time. They were drawn to the message I sent about how my services fit with their decision-making. My preparation message goes like this:

Dive into the questions in this Workbook and engage in your own conversations as you learn about yourself and each other. Treat this like a shared private journal where you can appreciate your unique qualities and embrace your differences.

When you are ready to discuss the “legal stuff”, book a session with me and remember you can include a collaborative coach or financial professional in your planning too.

The most important question in deciding about a Relationship Agreement is: Will a written Relationship Agreement help you feel more secure as you approach your future together?

I knew that questions were powerful, but clients helped me understand just how much. I do far more asking than telling – and the bonus is when it’s time to tell, I have a receptive client who knows I understand them and their unique needs.

Bringing in the expertise – the right professional at the right time

If relationship clients are tired of being told, could we see more couples choosing Relationship Agreements by inviting them to discover some things on their own, and asking more questions? I think so. But how do we manage it?

Collaborative practice offers a great model, with a contribution from each of the disciplines – psychological, financial and legal. But if we’re being honest, this model has not taken off as many hoped it would, and enthusiasm for engaging more professionals has not grown. Can we build in efficiencies that would allow us to do a meaningful hand-off to each of the professionals involved and still bring integrated expert advice that will support the couple?

Having a common foundation for preparing the client helps. When the clients have communication and relationship conversations with a mediator/therapist/family consultant, their discoveries could be passed on to the next professional in line – say it’s the solicitor. The solicitor can then ask lots of great questions before giving legal advice, and can better incorporate the clients’ goals and values in a Relationship Agreement. The financial professional can, in the meantime, be gathering the financial information and engaging in money conversations. Each professional can produce something that articulates what is important to the clients, and this can be incorporated into a legally binding Relationship Agreement that represents who the clients are and what they hope for. With consents to share information and commitments like we see in a collaborative participation agreement, we can work more effectively together in our separate roles.

How I built a relationship-positive practice

When I (with some trepidation) asked my clients about their experience working with me, their feedback led me on a learning journey that has been transformative.

I learned that humans have an inherent desire for self-discovery and when we invite them to come to some discoveries on their own time, they see us as offering a much higher value of service – building a positive relationship between the professional and the client.

As a legal professional, I feel so much less pressure to have all the answers. I find clients are far more open to working with professionals in the non-law disciplines. Realising that most clients don’t really like solicitor “know-it-alls” has helped me do far more asking, and a lot less telling. When the time comes for me to tell – to advise, guide or educate – I find clients are far more receptive because they have a sense that I “get them”. They appreciate being accepted for having some of their own expertise too – and enough wisdom to design their own futures. This is a relationship-positive practice.