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.