Why lawyers hate prenups

by Peter Magee on November 19, 2010

A recent article by Janet Fife-Weomans in the Daily Telegraph suggests that up to one in ten couples is locking their wealth away from loved ones with a prenuptial agreement.

Prenuptial agreements have only been available in Australia for approximately ten years and while I agree with Ms Fife-Weomans reporting in the article that ‘there used to be a trickle of couples drawing up prenuptial agreements.  That has become a steady stream.’

I do agree that prenuptial agreements are more often enquired about now than was formally the case, however I would disagree that as many as one in ten couples getting married would have a prenup.

Family lawyers generally dislike preparing such agreements because they are a minefield for a number of reasons:

  1. Given that the law covering such agreements is less than ten years old, and has already had many changes, it is far from well settled and therefore preparing Agreements that will endure the test of time and possibly change in the distant future is an unenviable task;
  2. It is difficult to put a price on the cost of preparing such agreements given the US experience where lawyers who prepare prenuptial agreements typically pay a substantial premium in their professionally indemnity insurance for doing so.  This is because many people who dislike the result of a challenge against a prenuptial agreement will then sue the lawyer who prepared the Agreement because they were not properly advised.  Few of these cases against lawyers are successful but there is still an enormous expense in defending the claims;
  3. Many lawyers who have a moral compass in relation to concepts of marriage lasting forever and they have reservations about preparing agreements which are seen as a fallback position in case the marriage doesn’t work out.  I don’t know of anyone who went through Law School hoping to become qualified to prepare prenuptial agreements.

Having said all of that, I refer to my earlier blog in relation to prenuptial agreements which spoke about their utility as an estate planning tool in appropriate circumstances.  Careful thought should be given as to whether or not it is appropriate when you are considering making the biggest decision of your life, getting married.

If you need assistance in preparing a prenuptial agreement or need advice in relation to a prenuptial agreement prepared on behalf of your fiancé please do not hesitate to contact us for advice.

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