Prenuptial agreements are becoming increasingly popular, at least if the number of enquiries our solicitors receive is anything to go by. I suppose with all the headline news about cases where couples spend months, and in some cases years, arguing over their divorce settlement it’s hardly surprising that some people want a degree of certainty about their financial future, should their marriage not work out.
Many of the people we speak to ask whether they can prepare their own prenup, hoping to save money or make the process easier for themselves.
In our view this is a dangerous course of action. As it stands at the moment prenuptial agreements are not legally binding documents, but if you want any hope of having a court take account of the wishes expressed in a prenup you need to make sure the agreement is prepared in a very particular way and that as many potential legal loopholes are closed as possible.
The importance of independent advice
One of the most significant considerations a court will give to a prenup is whether it has been prepared with the full knowledge and understanding of both parties. Both signatories to the agreement should have independent legal advice so that they understand the terms of the agreement and its implications.
Prenuptial agreements must be fair
The agreement should be ‘fair’. This of course is a very subjective point and if the agreement is prepared by one of the parties they may struggle to be fair to their other half, whether intentionally or unintentionally.
A family law solicitor will be able to advise you on the terms of the agreement – whether you are the party with lots of assets or wealth you are trying to protect, or whether you are being asked to sign an agreement.
Without the advice of a legal expert you could fall into several traps when preparing a prenup. Under what conditions would you want to review the agreement, for example? How will the prenup take account of any future significant financial changes in your partner’s position? What about if you have children and one of you gives up work to look after them? These and many more considerations need to be taken into account if you are to prepare a binding prenup.
So, my advice is always to take advice from a family law solicitor who’s an expert in prenuptial agreements, whether you choose to have them prepare the agreement or not. And don’t, whatever you do pay for a templated self-completion prenuptial agreement. It is very unlikely to take account of your unique circumstances and achieve the result you are looking for.
Woolley & Co, family law specialists