Although many people understand the advisability of entering into either a pre-nuptial contract or even a pre-cohabitation contract, one of the factors that mitigates against following this sensible route is that it is difficult to imagine anything less romantic than advising your future loved one that before anything else happens a legal contract needs to be entered into.
It is actually a bit worse than that. One of the pre-requisites of such a pre-nuptial contract is that each person should have their own independent legal advice otherwise at a later stage it may be possible to challenge the validity of the Agreement. So not only are you telling your spouse to be that they will have to enter into a contract but you are also intimating that it is not simply a question of going to one solicitor to have matters resolved but they will also have to consult their own solicitor. Each solicitor is charged with acting in their client's best interests. There is potential for disagreement. It occurs to me that enough difficulties can arise after you are married without stirring matters up before the knot is tied.
There is no easy answer. One way of lessening the impact might be to enter into a collaborative pre-nuptial Agreement. Each person would consult their own collaboratively trained solicitor and the details of what the pre-nuptial contract is to include would be discussed round the table in a co-operative environment. No letters going two and frow, no possibilities for misunderstandings between solicitors and everything is carried out in the presence of the clients. The thought process behind the discussions would not be adversarial but would be collaborative. Both clients (and their solicitors) would be encouraged to focus in the first instance on why such a contract is necessary, and the positive reasons for having such a contract in place moving forward so that each person knows where they stand.
Pricing is important too and it should be perfectly possible for the solicitors to come up with a fixed fee (that would do away with the uncertainty of time based charging).
There must be many people who shy away from the idea of a pre-nuptial contract because of the potential difficulty of arranging its preparation. A collaborative pre-nuptial is perhaps a way of making the process more acceptable.
If you wish to know more about the collaborative process, please contact our HM Family Team on 0141 227 9545.
Alan Susskind, Amanda Masson and Alexis Miller are all trained in collaborative law.