When you search online for prenup agreement services, you’ll come across a wide range of options. Some are offered by firms of solicitors, while others come from unregulated “lawyers,” legal-tech platforms, or document template providers. With so many choices available, how do you decide who should advise you on your prenup agreement?
The importance of independent legal advice
A key factor in ensuring that a prenup agreement is enforceable is demonstrating that both parties entered into the agreement freely and with a clear understanding of the terms. In legal terms, this typically means that each person must receive independent advice from a qualified solicitor.
Without independent legal advice, a court could later decide that one party was pressured into signing the agreement—perhaps by their partner, family members, or even the circumstances. Additionally, without guidance from a solicitor, a court might conclude that a party did not fully comprehend the legal and financial implications of the agreement. Prenup agreements involve complex legal concepts that most people are unlikely to understand without professional support.
If a court believes that independent legal advice was not sought, it may refuse to enforce the terms of the prenup agreement.
What are you paying for?
Not all prenup agreements are created equal.
When you purchase a standardised prenup agreement template, you are paying for a generic document that may not be well-suited to your specific circumstances. In most cases, you’ll be expected to edit the document yourself, which can be risky if you don’t fully understand the legal ramifications. Even if some level of support is offered, the advice may come from individuals who are not qualified solicitors, meaning they may not be able to ensure the agreement is properly drafted or enforceable.
In contrast, when you work with a solicitor, you are paying for their expertise and in-depth knowledge of the law. A solicitor will tailor the agreement to your individual needs, making sure that it is fair (and therefore more likely to be upheld by a court), that it considers potential future changes, and that you fully understand the legal implications of entering into the agreement. A custom prenup agreement drafted by a solicitor offers significantly stronger legal protection compared to a one-size-fits-all template.
Additionally, you’ll gain valuable insight into the laws surrounding marriage, divorce, and your specific rights and responsibilities.
Ensuring fairness
Most couples want their prenup agreement to be fair—and fairness is crucial for enforceability under English law. However, defining what is “fair” can be more complex than it seems.
Consider this example: Bill and Ben enter into a prenup. Bill is very wealthy, owning a successful business, while Ben earns just above minimum wage. Their prenup agreement states that if they divorce, Bill will provide Ben with financial support to maintain a reasonable lifestyle. Both assume that Bill will remain the wealthier party throughout their marriage.
Fast forward 10 years—their financial positions have reversed. Bill’s business failed and he has been unemployed for several years, while Ben became a successful entrepreneur with a property portfolio worth £10 million. The prenup didn’t account for this possibility, so Bill is left without support if the agreement is enforced as drafted.
This outcome is clearly unfair, and a court would likely refuse to uphold such an agreement. A solicitor drafting the agreement would likely have included provisions for changing financial circumstances, based on similar real-life cases where fortunes have shifted significantly. Laypeople are unlikely to anticipate such scenarios or know how to address them properly within a prenup agreement.
Financial disclosure
For a prenup agreement to be enforceable, both parties must enter into it with full knowledge of each other’s financial situation. This requires complete and transparent financial disclosure, where each person outlines their key assets and liabilities.
Although financial disclosure isn’t inherently complicated, it needs to be done in a structured and documented manner. Many template-based services and some legal-tech platforms don’t facilitate financial disclosure, which can jeopardise the enforceability of the prenup agreement.
A solicitor will guide you through the financial disclosure process, helping you organise your information and ensuring you fully understand your partner’s financial position. This step is essential for creating a legally sound prenup agreement.
Conclusion
To ensure your prenup agreement is legally robust, tailored to your needs, and fair, you should always seek the advice of a solicitor. Attempting to draft a prenup agreement without professional legal guidance could leave you unaware of key legal details, unprotected in the event of unforeseen changes, and with an agreement that may be deemed unenforceable.
At Prenup Solicitors, we guide you through the entire process of creating a prenup agreement, including financial disclosure and negotiations. We explain the laws surrounding marriage and divorce so that you have a clear understanding of your rights and obligations. Our goal is to create a personalised prenup agreement that protects your interests and reflects your unique circumstances as a couple.