Children, maintenance and prenups: what can and can’t be agreed

A prenuptial agreement can help couples plan their finances before marriage and reduce uncertainty if the relationship ends. In England and Wales courts will consider a prenup when deciding financial arrangements on divorce. However the law treats arrangements affecting children very carefully. This guide explains what you can and cannot agree in a prenup relating to children, how courts approach child maintenance and welfare, and practical steps to draft agreements that respect children’s interests while remaining useful for adults.

Why children change the legal picture

Courts place the welfare of children at the centre of any financial or custody decision. Judges follow the Children Act 1989 and related case law when resolving disputes about residence contact and financial provision. Any private agreement that attempts to bind a court on matters affecting a child’s welfare will attract strict scrutiny and may be set aside if it risks the child’s best interests. Prenups can record parents’ intentions, but they cannot override the court’s duty to provide for children reasonably at the time of separation.

What prenups can cover in relation to children

Prenups can include many practical arrangements that affect children indirectly, provided the clauses do not attempt to fetter the court’s discretion on welfare and maintenance. Common lawful inclusions are:

– housing arrangements: who will live in the family home temporarily on separation and how housing costs will be shared while parents negotiate a long term arrangement

– educational plans: parental commitments to fund private schooling uniforms transport and extracurricular activities, including how costs will be shared or reviewed

– trusts and capital provision: mechanisms for ring‑fencing capital for a child’s education deposit for a first home or other long term needs via trusts or protected accounts

– life insurance and protection policies: nominations or requirement for life cover to secure a child’s financial support if a parent dies

– interim support arrangements: agreed, short term payments to cover immediate needs while parties seek formal orders or mediation

– arrangements for child related expenses: formulas for splitting childcare, medical costs school trips or enrichment activities that the parties agree in advance

These provisions show intention and good planning. Courts may view them favourably if they demonstrate parents considered children’s needs responsibly and left room for later court review.

What prenups cannot lawfully decide for children

The law prevents parents from using a prenup to bind the court on critical child matters. Prohibited or ineffective clauses include:

– fixed child maintenance rates that attempt to oust the court’s discretion: the court has statutory power to set maintenance based on children’s needs and parental means and can vary orders as circumstances change

– clauses that determine custody or contact permanently: the court must always assess the child’s welfare at the time of application and will not be bound by a pre‑marriage agreement on residence or contact

– waivers of a child’s rights: parents cannot sign away a child’s statutory entitlements including the right to reasonable financial support from both parents

– arrangements that place a child at risk: agreements that compromise a child’s safety, health or welfare will be ignored and may attract safeguarding intervention

– attempts to discourage court proceedings: clauses requiring a parent to forfeit rights for seeking court help or imposing punitive penalties for applying to court may be unenforceable

In short a prenup cannot remove the court’s ability to act in a child’s best interests. Any clause that aims to do so risks being set aside in whole or in part.

How courts assess child related prenup provisions

When a prenup includes child related clauses a court will consider several factors:

– the child’s welfare as the paramount consideration under the Children Act 1989

– whether the agreement preserves flexibility for changing circumstances, for example by using review triggers or linking support to measurable needs such as school fees or housing costs

– evidence that parties discussed and understood the implications and did not sign under pressure

– whether any provision would leave the child inadequately provided for at the time of dispute

– whether independent legal advice and full financial disclosure took place when creating the agreement

Judges favour arrangements that document parents’ intentions while safeguarding the court’s ability to act later if children’s needs change.

Practical drafting techniques that respect children’s rights

Draft with clarity and flexibility so clauses help rather than hinder future decisions. Use these drafting techniques:

– frame provisions as intentions or statements of likely position rather than fixed or final determinations

– include review clauses that trigger reassessment after major life events such as the child starting secondary school a parent losing employment or a parent receiving a substantial inheritance

– set interim payment mechanisms for immediate needs while parties pursue mediation or court orders

– specify who pays which categories of costs and include objective formulas such as percentage splits based on net income or time spent caring for the child

– create trusts or protected savings accounts for capital provision with trustees who must consider the child’s welfare before releasing funds

– avoid language that attempts to oust the court’s jurisdiction or to waive statutory rights

These approaches make a prenup more likely to influence later negotiations while leaving courts free to do their job.

Child maintenance: statutory framework and how prenups fit

Child maintenance differs from spousal maintenance. The Child Maintenance Service (CMS) and the court can order financial support. The CMS uses a statutory formula based on the paying parent’s gross income and the number of children. Parents can make private arrangements but courts and the CMS will ensure that the arrangement meets children’s reasonable needs. Key points include:

– private arrangements: parents may agree privately to pay maintenance at set levels, but the CMS can intervene or the court can vary terms if the child’s needs demand it

– variation and review: any agreement that does not respond to changed incomes or needs will likely become unsuitable; link payments to objective triggers such as income bands or review dates

– enforcement: the CMS and courts have strong enforcement powers; attempts to avoid liability via a prenup will not succeed if they leave children under‑provided for

Parents should treat maintenance agreements in a prenup as provisional plans that they intend to follow while accepting that a tribunal or court may impose different terms later.

Use of trusts and capital provisions for children

Parents often prefer capital solutions for long term security, such as trusts for education or housing deposits. Trust arrangements work well because trustees owe duties to beneficiaries and courts will enforce trustee obligations. Consider these points:

– choose suitable trustees: independent trustees reduce conflict of interest and ensure impartial administration of funds for the child

– set clear distribution criteria: define age milestones or educational events that trigger payments, and allow trustees discretion for exceptional needs or emergencies

– tax implications: tax advisers should review trust structures, as trusts can have inheritance tax and income tax consequences that affect the child’s benefit

Trusts provide durable protection for capital intended for children and reduce the risk that a payment will be diverted during a dispute.

Addressing guardianship and long term planning in prenups

While a prenup cannot impose guardianship arrangements on a court, parents can record their wishes about guardianship, upbringing and schooling. Include:

– expressed intentions for who would care for children if both parents die or become incapacitated

– directions to update wills to reflect intended guardians or trusts for guardianship funding

– a statement that the parties will involve each other in major decisions about education religion and health, subject to the court’s welfare test

Documenting intentions helps executors and tribunals understand the parents’ priorities, though courts will still decide guardianship and parental responsibilities under statutory rules.

Mediation, collaborative law and dispute resolution clauses

Include a dispute resolution clause requiring negotiation mediation or collaborative law before applying to court on child related financial matters. Courts generally welcome parents who have attempted alternative dispute resolution. However include a reservation that either party may apply to court urgently if the child’s welfare requires immediate intervention.

Checklist: drafting a child sensitive prenup

– state that child welfare overrides any part of the agreement on child related matters

– include clear, objective interim payment formulas and review dates

– use trusts for capital provision and name independent trustees where possible

– avoid fixed waivers of child maintenance or custody rights

– require independent legal advice and full financial disclosure for both parties

– include dispute resolution steps with an urgent court carve out for safeguarding concerns

– attach schedules with financial evidence and specify mechanisms for updating the agreement

When to seek specialist legal advice

Seek specialist family law advice from us  whenever children feature in financial planning. As solicitors experienced in children law and finance we will help you balance parental intentions with the court’s duty to protect children. We can draft clauses that survive scrutiny, propose trust structures and coordinate wills and guardianship plans.

Conclusion

Prenuptial agreements play an important role in planning family finances but they cannot bind a court on matters affecting children. Draft child related provisions as flexible, evidence based and welfare focused statements of intention rather than fixed bargains. Use trusts for capital protection, include interim maintenance formulas and review triggers and always obtain independent legal advice. Courts will respect parents who plan responsibly and who prioritise a child’s best interests above private arrangements.

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Peter Johnson on 3rd November 2025 and is correct at the time of going to press. With over forty years of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here. To follow up on any of the above please contact Guy Wilton of our family department. Guy has wide experience of acting for the firm’s clients, their family and their businesses. Guy’s experience as a lawyer started in the Northern and Welsh Circuits, including the Liverpool Courts, where he represented numerous clients after being called to the Bar, before opting to join Alexander JLO in 2017 and qualifying as a solicitor in 2024. He is a highly experienced family lawyer with a particular interest in financial remedy proceedings and child contact disputes.

 Guy’s profile on the independent Review Solicitor website can be viewed here.