What’s the best way to work out a prenup?

Tim AmosTim Amos QC discusses why the collaborative process works well for pre-nuptial agreements.

Pre-nuptial agreements are becoming ever more common in England & Wales. As people are marrying at an older age when they may already have significant assets, and perhaps having been married before, there is a trend towards setting out in advance how property and income will be managed in the event of a later separation. Further, marriage contracts and pre-nups have been an accepted and expected part of preparation for a wedding in many overseas jurisdictions for many years. As romance becomes a more international affair, it is simply a conversation more likely to crop up.

We have recently had clarification from the Supreme Court about how marital agreements are likely to be treated in an English court if challenged in the event of a subsequent divorce. Our Law Commission has also proposed that the law should be changed to make agreements binding, subject to safeguards, except where there is evidence of foul play or manifest unfairness. It is clear that the law and public policy is now more supportive of the public’s increasingly expressed desire to regulate their own affairs.

The collaborative process is an ideal forum for working out the details of a pre-nuptial agreement, as the lawyers and clients work closely together on a solid bedrock of trust and open negotiation in order to work out a solution that is fair and complete.

It is the completeness of the solution that tends to be my specialist area. When working on a pre-nup, or a post-nup, my collaborative solicitor colleagues from Creative Divorce might discuss with their clients whether they would like me or another specialist barrister to come into the process as an independent legal expert. If called upon to do so, I will give my opinion on how a court might treat the draft agreement, and whether there are any other eventualities that need to be addressed. I can act as an ‘honest broker’ to check whether people have considered all the ramifications of an agreement for both people involved, and can raise any points that I feel might lead to difficulties so that they can be reconsidered in the four-way meetings that are part of the process.

An important part of my job in advising on a pre-nup is not just testing against reality, but also testing against expectation. These discussions require great sensitivity, as they can sometimes lead to a change in the dynamics between the couple. Most of the time these points can be resolved quickly, easily and harmoniously. In other cases, they can really put the cat amongst the pigeons, at least for a while, and therefore require particular engagement to resolve. However difficult this might be on occasion, it is in my view always better to explore and resolve the difficulty before, rather than after, the agreement is signed.

The beauty of the collaborative process is that my skilled collaborative solicitor colleagues tend to ensure that the conversation continues constructively, no matter how difficult the subject matter. In my experience, even if the assets are complex and the expectations are difficult to fulfill, the collaborative process is by far the most successful and least stressful method of agreeing a pre-nup.