LEGAL | Should I get a prenup?16th October 2013
Hurrah! From next summer, lesbian, gay, bisexual and trans people can get married in the same way our straight families and friends have done over the centuries, even in participating churches (the Quakers have been particularly supportive as have the Liberal Synagogues).
As a family lawyer with a specialism in separating and divorcing couples, both gay and straight, most of my clients are struggling to come to terms with the end of a relationship. While some feel relief at the prospect of moving on with their life, nearly all of them are sad that things didn’t work out as they had hoped. LGBT clients that want to marry are now considering pre-marital agreements. Whilst working on Civil Partnerships, I have encountered similar questions from almost every client.
Why do it?
Pre-marital agreements are an opportunity for the parties to agree how they would like to arrange their finances in the event things do not work out as they plan. Despite obviously being forced to consider a possible divorce this can be a positive experience. You see, the alternative is an adversarial procedure, set up in 1973, whereby lawyers reduce each party to a number, a net worth, and then a judge decides on how their finances should be fairly divided considering a variety of factors. Coming to an agreement about fairness between yourselves ought to reduce uncertainty which, in my view, is always good.
How should I raise it?
Sometime both parties immediately identify the agreement as a necessary thing. For most, however, it is usually the partner with the most assets or highest income that raises it. This can be tricky. I have seen these discussions end relationships before they begin so I strongly urge any client who is in a stronger financial position, than their future husband/wife, to offer to pay all the legal fees from the outset.
Never use the words “protect assets” or “ringfence” at this stage, rather say “certainty” or “clarity” and always mention that agreeing now will prevent having to pay out to lawyers in the future. Depending on your family arrangements, you will also want to mention parental pressure (if there is any) regarding future inheritance and/or ensuring security for any of your children.
How much should I pay?
This can range from £195 DIY agreements to £6,000 plus depending mainly on the type of solicitor(s) you instruct. It is universally accepted that both parties should take independent advice in order for the agreement to be taken seriously by the court. Normally, one solicitor drafts the agreement and another provides advice and negotiates amendments.
If you like the comforts of beautiful city offices and delicious biscuits you will pay for it.
Based on my experience, even people of high net worth should not be paying more than £2,500 for the drafting and £1,000 for the reviewing. If both parties are English and all of your assets are in the UK I would expect the cost of a properly agreement to be approximately £1,500 and a review of approximately £750.
If you are considering the DIY option, please do not. Ask yourself whether or not you would attempt DIY dentistry? Solicitors have trained as long as dentists and, if you get the right one, demonstrate excellent value for money. DIY agreements can offer false hope and lead to serious unintended consequences.
What are the pitfalls I should avoid?
Do not instruct a solicitor that gives a vague price, saying something like ‘I cannot predict how much it will cost because I do not know how complex your matter will be’. Tell them that if they want the work, they should take the time to complete an assessment of your matter at no cost to you and then provide an accurate quotation. At the very least, set a costs cap so that you can track how much you will have to pay.
Pre-marital agreements are new to England and Wales, pre-2003 they were completely useless and since 2007 the courts have increased their importance, often describing them as magnetic. However, they are not strictly binding on the court. This means that a judge will still look into the circumstances of the marriage and take their own view of what a fair division of assets should be.
In this developing area of law it is generally accepted that for marriages which have lasted more than a couple of years, an agreement that does not provide for the housing needs of both parties and/or leaves either of them with no income would be ignored in the court. It is a mistake to take the time to draft an agreement that does not meet this bare minimum because you will have risked enduring the difficult process for nothing.
If you are planning on getting married next summer, congratulations! Amongst your booking of venues and planning what alcohol to serve, a premarital agreement can take up to six weeks to complete and it should be signed at least 21 days before the ceremony. These are only guidelines but I am sure you get the picture, if it is signed the day before, or the day of, the wedding it looks like it was rushed and signed under pressure.
Conceptually, I compare these agreements with Wills (which you should also complete!) in that they are tricky but important bits of lifetime housekeeping. Done well, both agreements allow clients to take control of their life and make their own decisions.
If you would like to speak to Randal Buckley about this or any other family law or Wills matter, please contact him by email at firstname.lastname@example.org or call 020 8956 2655. He blogs at: www.thelawhouse.com/author/randal-buckley and you can also follow him on Twitter: @Randal_Buckley.