WHAT’S LOVE GOT TO DO WITH IT? [1]
What is it about Pre-Nups !?!
A lot has been written, and continues to be written, about how couples and their lawyers need to conduct themselves according to quite strict legal requirements when they contemplate having a Pre-nup.[2]
When one looks at the situation more holistically one needs to be aware that this specific legal process is happening amongst a myriad of other “happenings”.
The couple, who are embarking upon a happy life together, are also in the detailed process of planning their wedding arrangements. They engage with a Wedding Planner, reception centre, caterer, florist, photographer and videographer, hire the limo, arrange the church and/or wedding celebrant, then their outfits, and those of the bridesmaids and groomsmen, their honeymoon etc. They also debate which family and friends should (or cannot) be invited, and so on.
As we know from experience at these times, matters can get touchy and awkward. The full spectrum of feelings and emotions bubble to the surface and then subside to happy thoughts.
Amongst all of this happy and fulfilling planning the couple may also need to deal with negotiations for a pre-nuptial agreement which really requires them to go into great detail about their future divorce.
There are many reasons why a couple need or want to have a pre-nup.
- It may be that one or both of their families is wealthy and there is pressure to protect the family wealth,
- It may be a second marriage so that assets need to be preserved for children from the previous marriage,
- The couple want to contract out of the Family Law system with its discretionary decision process and set up their own structure for final settlement.
- There may of course be other motivators.
Contradictions & Conundrum
So, they are planning for their divorce while they are getting themselves organised and looking forward to a harmonious wedding and life together!!!!!
Here is an example of one of the first serious contradictions that will affect the couple. Given that every coupling is different and will have its own nuances and intricacies, it is not useful to generalise about motivations, imperatives, needs, desires and so on.
What a conundrum!
The most common way for the pre-nup legal process to fold out is for one party – usually the wealthier one – to broach the subject of a pre-nup with their fiancé/fiancée.
That party then goes to their lawyer (Lawyer 1) to provide their requirements and to get advice.
That lawyer (Lawyer 1) is often asked to recommend a lawyer (Lawyer 2) for the other party as each party MUST have separate and independent lawyers in the process. The first lawyer (Lawyer 1) will be reluctant to nominate one name as this may be seen as “undue influence”, so they may nominate 3 names or suggest enquiries be made of the Law Institute or Law Society that regulate lawyers.
Lawyer 1 will most probably prepare a draft pre-nup to embody the instructions that were provided. This is sent to the other party-or their Lawyer (Lawyer 2).
Lawyer 2 seeks instructions and provides advice in accordance with their requirement to protect their client’s interests.
These discussions must be detailed and often cause concerns and distress because they bring into question the element of trust between the parties into the future. A few rounds of amendments, as well as some requests for further disclosure, will usually be made until the lawyers and the parties are satisfied that full disclosure has been made-or not.Quite often the couple between themselves, will go over what has been discussed with their respective lawyers, and it is not unusual for there to be misunderstandings about what they believe they have each been told.
This forth and back will proceed in the shadow of the important adage that “a pre-nup should be finalised and signed well before (preferably months before) the wedding”.
There should not be ink on the wedding dress!!!!
Well what should be done?
In these circumstances what if the couple and their lawyers get together in a collaborative process which sees them all discuss the basis, purpose, and structure of the agreement.
Or at the very least the parties and their lawyers would promote the benefits of a joint approach to preparing a pre-nup, that takes in account and considers the requirements and concerns of both parties.
There are very strict requirements which the parties need to be aware of, to ensure that the pre-nup is binding and enforceable. Both lawyers will be acutely focussed on the obligations on both sides to disclose all relevant information (usually of a financial nature), as well as being on top of the common criticism that there is duress or undue influence at play.
The terms of the Agreement will involve robust discussions about entitlements and responsibilities that will eventuate some time into the future, and after many unknown events and circumstances which will occur to the couple and their surrounding people.
I am not aware of too many instances of a joint or collaborative approach being used to finalise a pre-nup. It may be that the long-entrenched method of an “adversarial” approach cannot be undone. It may be that there is a perception that the independence of the lawyers will be affected.
Of course, both parties and their lawyers can go through a “round-table discussion” process so that everyone hears the same thing from all of the people involved.
Is it time to reconsider that it is the Outcome that the parties are seeking, not a traumatic oppositional process?
I believe it is time!!!
Barry Berger, Dignity.EDR
21 August 2023
[1] Immortalised by the now late Tina Turner in her 1984 Album “Private Dancer”.
[2] A “Pre-nup” is short hand for a pre marriage or Relationship Binding Financial Agreement under the Family Law Act which is signed before a couple marry or enter into a Relationship.