The courts are much more ready to uphold the terms of a prenuptial agreement now than in the past. But one thing that’s frequently misunderstood is that these types of arrangements are not automatically legally binding. Their enforceability can be undermined if there are suggestions of duress or influence. And allegations like this are easier to stand up where one party has not received separate or independent legal advice.

While strictly speaking there’s no bar on a couple using the same solicitor for their prenup, it’s generally better for each party to have their own legal representation. As we explain below, there are ways for both sides to work constructively to agree a prenup even when two solicitors are instructed, minimising the time and cost involved.

What Are The Requirements For A Valid Prenuptial Agreement?

The essentials for a prenup – one that the courts will recognise – are as follows:

  • The agreementmust be freely entered into
  • The parties must have a full appreciation of the implications of the agreement
  • It must be fair to hold the parties to their agreement

This last point is worth highlighting. ‘Fairness’ is fundamental to all divorce settlements. No agreement can override the inherent power of family courts to apply fairness when deciding on financial and other issues. If you and your partner use the same lawyer for your prenup, that’s not necessarily unfair. But consider the position if the prenup ever has to be tested. Could an implication of unfairness be drawn by the fact that one side did not get separate advice?

Take the 2019 case of Ipekci v McConnell. The High Court in London refused to uphold a prenuptial agreement partly because of the nature of the legal advice. Although the husband (the financially weaker spouse) was advised on the prenup by a different lawyer from his wife, the lawyer he relied on had acted for the wife in her previous divorce. In Mostyn J’s judgment this, taken together with the overall circumstances of the case, rendered the agreement ‘flawed’.

Getting Joint Legal Advice For A Prenup

In some countries getting advice from the same lawyer for a prenup is standard. The thinking is that a prenup is a voluntary agreement that does not have to be contentious. And in England and Wales one instance when a solicitor can represent both parties to a prenup more easily is when a couple already has a prenup drawn up in another country that they want redrafted for use in England. This is a more straightforward process and is more easily done by one solicitor for both parties.

But overall in England and Wales giving joint advice to couples that wish to enter a prenup is much less common than may be the case elsewhere. In our experience the reality is that a prenuptial agreement will usually be of more benefit to one side –usually the financially stronger party. There’s a recognition that one side might be reluctant to raise their concerns when the other party is present. And this increases the possibility of undue influence.

That said, there may be reasons why a couple decides on joint advice. They may be worried about confidentiality or may wish to save costs. In such circumstances the job of the lawyer is challenging. The advice must be for both sides at all times. If the prenup disadvantages one party the solicitor can’t advise that party that this is the case – the advice has to relate to joint matters.

It’s unsurprising then that if a couple do insist on joint advice their lawyer is likely to strongly advise them that the agreement may be more difficult to enforce. It will be pointed out that if one party wishes to rely on the prenup in the future the other will be able to argue that they did not fully appreciate the meaning or implications of signing the agreement.

Many solicitors will ask parties to sign a comprehensive disclaimer if they do seek joint advice for a prenup. This in itself should act as a warning about the implications and limitations of joint prenup advice.

Getting Separate Advice For Your Prenup

As we’ve seen using the same solicitor for a prenup presents a number of issues, and could result in the agreement being unworkable. However a good law firm will be able to recommend other solicitors so you don’t have to waste time trying to find two firms. Usually the recommended firms will be ones that are known not to have a combative approach so that the prenup can be drawn up in a collaborative and less stressful way.

Got a question? Ask us now…

Kindly complete the form below to send an enquiry. Your message will be sent to one of our solicitors. Discretion is guaranteed.

Your Information

  • Consider including information such as: the name of your spouse (if relevant), the country you live in, the background to your problem.

  • This field is for validation purposes and should be left unchanged.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Over 2000 FREE
consultations and counting…

Our free consultation can help you more clearly understand the legal issues relating your case and what your options are to move forward.

Request your free consultation

Or send us an enquiry

I had a 30-minute consultation with Samantha Jago where she clearly explained all my options and followed up with a detailed email of notes. I would highly recommend if you need help to clarify where you stand and getting options for how you move forward.

Jun 2024   Katherine Davey

I recently had a one hour pro bono consultation with Samantha Jago. I was really blown away by how much she was able to digest in such a short period of time and even more so by the report which I received shortly after.

Apr 2024   S DF

I had applied for a free consultation and I was contacted in a very short timeframe. Thank you so much for the insightful and thorough consultation, Kevin Danagher. You made me feel at ease and you provided clear expectations with the initial info I had provided... I have now a much better understanding on my query.

Feb 2024   Sonia Accardi

We had a very useful first consultation with Amber Matheson today. Amber took the time to understand our (somewhat complicated) set-up, and offered good, understandable advice on next steps. She followed up with a very thorough email clarifying what we had discussed. Highly recommended.

Feb 2024   Lucie

Lovely friendly experience. All questions were answered so that I understood completely.

Dec 2023   Ali Catlin

Very balanced, fair and pragmatic advice. Thoroughly recommend!!

Nov 2023   James Elliott

Henry graciously provided his time for a consultation. I found him to be highly knowledgeable, empathetic and he provided excellent advice which put my mind at ease. Would highly recommend Henry and his firm.

Oct 2023   Allan Ang

Henry Brookman went above and beyond during the free consultation, and even overran the allocated time. He provided invaluable professional advice in a courteous manner. I recommend his firm without reservation.

Sep 2023   Mario Ignatov

I only had my initial free review with Amelia yet I already feel much more strengthened in my legal and financial position. I am currently reflecting on the steps I want to take to negotiate my desired outcome of the financial settlement but, when I am ready to use the services of a lawyer, Amelia is definitely the top on my list.

Sep 2023   Nahid Toubia

I had a zoom consultation with Lauren Moir and she was incredible. Very patient, insightful and reassuring. She also advised me based on my previous conversations with another firm and also clarified various positions I am in. Highly recommend.

Aug 2023   Gary Hawes

I was very impressed with the friendly, helpful and professional service offered by Brookman Solicitors. The generous advice and knowledge offered during the initial free consultation has enabled us to have a much better understanding of our case and plan a way forward.

Jul 2023   Peter Jackson

I had a first consultation with Kevin, who very diligently and professionally provided an exhaustive overview of the divorce process and the best approach for my specific case.

Jul 2023   Giulia Matteo

Great service and excellent advice at the initial consultation. I would certainly recommend and use in the future.

Jul 2023   Tom James

Google Reviews
Ask A Question

Contact Us

If you have questions, contact us now, we can help you.

Enquire Now

Or call us on +44 (0)20 7430 8470