It is a very common refrain with any new enquiry – the wedding is in just over a month’s time and whether the wealthier party’s solicitor is now preparing the draft prenuptial agreement(‘PNA’) for review or vice versa, this is all going to be very straightforward. Everything is settled so really, this is not much more than a ‘simple’ review, an hour or two should really do it. How complex could it be?

The answer is, much more than you think. The reality is that no ‘simple’ review exists. A pre (or postnuptial) agreement is not an uncomplicated document even where everyone proposes keeping what they brought into the marriage. For the financially stronger party, it is essential that both parties have the opportunity to take independent legal advice, with the benefit of full financial disclosure and ideally more than 28 days before the day of the wedding. This will make the prenuptial agreement less susceptible to challenge in the event of a breakdown of the marriage so the value of this exercise cannot be understated. For the financially weaker party the terms of the agreement are explained to them properly and they understand what they are giving up on entering into the marriage (by its very nature a PNA is compromising the claims they could make).

Our work will normally begin with a short discovery call to discuss what you and your partner want to achieve. This is ahead of a much longer meeting (which can be remote, if necessary) where we can discuss in much more detail your overall objectives or as time allows, walk through the agreement in hand (normally from the other party).

It can be useful for both parties to approach solicitors with a broadly agreed headline summary of your financial positions which can help truncate the process. To advise properly, both sets of solicitors should have an understanding of each party’s assets, liabilities and income together with the details of any inheritances. This is an often-overlooked part of the process. Even where both parties have decided to dispense with providing documentary evidence in support (which they are entitled to ask for) there can be a degree of back-and-forth finalising the schedule that will be appended to the back of the agreement (valuations and balance may need to be requested and updated).  Generally, once the exchange of financial information is complete, your solicitors will be able to advise in writing about the terms of the agreement and possible protections you might consider. This might range from the extent of the provision to be made for the financially-weaker party to the kind of review clauses that might be included and how the needs of any children will be met.

Even when you and your spouse have the terms of your PNA in mind, it will be the job of your solicitor to advise upon those terms irrespective of how settled they are (this all helps makes the PNA less susceptible to challenge). Any subsequent negotiation can be one of the most emotionally charged and delicate moments in the process - if the sheer fact of the PNA was not enough, the happy couple are effectively being asked to negotiate in the here and now against each in contemplation of something that may never come to pass. Direct, open conversations can be cost-effective and efficient but they may also lack clarity and not survive contact with informed advice. That may necessarily involve correspondence passing between lawyers (it is very common for the solicitor preparing the PNA to provide a shortlist to the other party of solicitors known to them which can help immeasurably although you are free to choose your own) which will have limitations given their own commitments. If time allows there are other methods. If time and budget allows, couples are increasingly using roundtable meetings which are solicitor-led or mediating as a means of encouraging constructive and crucially collaborative discussions. These can help narrow points of dispute quickly.

There is also the proximity of the instruction to the wedding. While entering into a PNA less than 28 days is not terminal to the agreement being upheld, it is not ideal. The sooner, the better. That may mean more than one solicitor working on the file to hit the key date of the wedding. That will also have a consequent effect on the cost of the work. 

The final word is on that first call. Many solicitors will offer a short preliminary discussion - these will usually be an opportunity to discuss the immediate next steps and how that solicitor can help. It’s also a good opportunity to get a feel for the person you will be working with. Make sure you understand the quote for the work you are given and what it will cover but understand that unless a fixed fee has been agreed, your costs could be higher or lower depending on the amount of work actually required. If the matter requires a lot of rapid, back and forth communication, that quote is likely to be higher. 

If you require any advice on prenuptial agreements, please contact the team at Burgess Mee on mail@burgessmee.com.

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