Considering a Prenup? Think about a Collaborative Prenuptial Agreement

When clients go to see a family lawyer about a separation, they have come to the end of an intimate relationship with their partner and are often looking for a confidante as well as an advisor. They often choose their lawyer with this relationship in mind.

However, the dynamics around choosing a lawyer for a prenuptial agreement can feel quite different; clients are in a life planning stage and are looking to celebrate their future marriage and life together. Having to speak to a family lawyer at this point may understandably feel like a chore.

Family lawyers are fully aware that visiting us can feel a bit like visiting the dentist; you know that it is a necessity, and you will feel reassured that you have been, but it is rarely something to look forward to. Consequently it is not uncommon that clients at this stage of their life wish to spend as little time as possible trying to agree a prenuptial agreement. It can feel like it is getting in the way of their wedding planning which they would far prefer to focus on. To be blunt – the process of agreeing a prenuptial agreement can feel awkward.

The desire to spend as little time as possible arranging a prenuptial agreement can lead to clients trying to have as little communication as possible between themselves, their future spouse and the lawyers. They may feel that having an open discussion is uncomfortable and they want to mitigate this discomfort.

However, a prenuptial agreement is more than just another piece of wedding admin. It requires careful thought and consideration and leaving it to the last minute or trying to avoid spending time on it can lead to it feeling rushed.

Although prenuptial agreements are not technically legally binding in the UK, they are highly persuasive to a court and recent case law shows that the courts’ approach is that prenuptial agreements will be upheld (unless there are specific reasons not to). The UK Law Commission set out criteria to include within a prenuptial agreement and, should these criteria be followed, the prenuptial agreement is likely to be upheld. One such criteria is that a prenuptial agreement should be signed at least 28 days in advance of a wedding to ensure that there has been no undue pressure on either party.

Typically, agreeing a prenuptial agreement happens as follows:

• The person seeking a prenuptial agreement (let’s call them “Person A”) and their lawyer will discuss what they wish to include in the prenuptial agreement, and the lawyer will draft the agreement and then review it with Person A.
• Once Person A approves the draft it is then sent to their future spouse (Person B)’s lawyer who takes instructions and returns it to Person A’s lawyer with their comments.
• Negotiations can then continue in this fashion.

This style of back and forth is not a quick method of communication or resolution, and weeks can pass between the sending of an email, to the lawyer advising on the contents and then eventually responding. This process can work perfectly well and will be the right process for some clients. However, this process, often undertaken due to a wish to minimise the time spent on a prenuptial agreement, can take far longer than if the couple sat down round the table with their lawyers in the first place.

On occasion, prenuptial agreements can raise more issues between the engaged couple where they have different ideas about the intentions behind the prenuptial agreement. The terms proposed by Person A end up being explained to Person B by their lawyer and it may not always reflect what Person B expected. Understandably this can lead to friction between a couple.

The Collaborative Prenup: Sitting Around The Table

There is a different process which can allow for communication and transparency. This is known as the “collaborative” prenuptial agreement or the collaborative prenup. This is a process where the couple and their lawyers all sit around the table to negotiate the contents of the agreement.

All the lawyers’ advice is given in front of both members of the couple and all negotiations take place in front of everyone. Neither party receives advice outside of the collaborative meeting meaning that both benefit from hearing what each other are being advised. The lawyers then work collaboratively together to draft the agreement.

In practise, the collaborative model can mean there is less back and forth and the prenuptial agreement therefore takes less time to finalise than if the traditional model is used.

Another benefit of using the collaborative model is that both future spouses hear both of their lawyers’ advice. Consequently there should be far less room for any misunderstandings or different interpretations of any terms. It is a process which aims to respect and maintain the trust between a couple who are about to get married.  It allows a space for open and honest discussion, where the couple can lead the agenda and explain to each other what their expectations are and what it is that they want to achieve.

Of course, it can feel alien to sit down and talk about what the finances would look like if you should separate when you are about to enter into your marriage. It can be helpful to think of a prenuptial agreement as akin to any other type of insurance. It is useful to consider what in would happen in the future if things do not work out. No one has ever said they should not have home insurance because it is pre-empting a burglary or a fire; it is the same with prenuptial agreements.

The collaborative model also has the flexibility to bring in third party neutral advisors to help advise the couple, if they feel it would be useful. For example, a couple may want to have a financial planner present, to help explain what the financial provision in the agreement would deliver. The couple could even bring in a counsellor or therapist to help them navigate the emotional aspects of entering into a prenuptial agreement.

Every marriage will involve having some difficult discussions. It is good to know when entering into marriage that there is a way that you can have these discussions together and tackle issues head on openly rather than via correspondence between lawyers. A collaborative prenup may be the answer!

Hannah Greene is a Senior Associate at Family Law in Partnership. Hannah advises on all aspects of divorce and cohabitation, including financial and children matters, and on relationship agreements including prenuptial agreements and cohabitation contracts. Hannah is a qualified collaborative lawyer.