Resolution Conference
Four members of the team attended the annual Resolution conference in the Spring of 2015, this year in Brighton. The conference is made of up talks and workshops on key areas in family law, and is also a great opportunity to network with other likeminded lawyers. Following the conference Laura Smail was selected to write an article for ‘The Review’ about the pre-nuptial workshop, one of the best attended of the weekend.
The text is below – this was published in the Summer issue.
PRE-NUPTIAL WORKSHOP
Unsurprisingly the pre-nuptial workshop was one of the most popular choices over the weekend. The expert panel leading it comprised His Honour Judge Phillip Waller CBE, Nicholas Cusworth QC, Phillip Marshall QC, William Longrigg and James Carroll. Together they wound their way through the murky legalities of drafting and offered practical tips following the Law Commission consultation paper and Radmacher v Granatino.
As was initially outlined, the Law Commission have suggested ways of removing the uncertainty following through the adoption of ‘QNAs’ (Qualifying Nuptial Agreements). Their proposals are awaiting response from the next government, but set out strict criteria for compliance including contractual validity, full financial disclosure and the need to complete the documents twenty-eight days before the marriage.
The experts discussed a range of issues, including (but not limited to!):
1. How far the parties should comply with the QNA requirements.
The general consensus was that all clients will now need to be advised what a prenup is, what a QNA is and what the Law Commission’s proposals are. This advice will need to be qualified as the clients themselves will need to keep an eye on the law. If it is intended that the pre-nup becomes a QNA the drafting will need to follow the Law Commission provisions so far as possible.
James Carroll suggested that if a judge was faced with a document signed now they would go back and look at the parties’ intentions. If the agreement is Radmacher and Law Commission compliant then the implication would be that it was intended to be binding. As practitioners the best we can do is apply the law in force at the time of drafting.
2. Inclusion of review clauses
The general consensus from the panel is that they are disliked, lead to confusion and don’t work. This is particularly the case when a further clause is then required to say that the absence of a review does not weaken the agreement (in practice, it always does!) In reality, people are simply getting on with their lives rather than sitting down every few years to review.
Phillip Marshall QC suggested that in his view it is impossible to have a mechanism as to how the review will properly work. If the agreement lapses in the absence of a review, then this is simply a time limited agreement.
A properly crafted pre-nup should factor in a change in circumstances. It is also important that if you choose not to include a review clause then you should specifically say why not (for example, as the provision made in the agreement takes account of a change in circumstances / increased length of marriage etc).
3. Financial provision for children
William Longrigg explained that he often set out what housing and child maintenance should be within the prenuptial agreement. Others agreed that it is usual to consider the outcome on separation either with or without children. Whilst this element will be dependent on the parties’ positions at the time, it is a good indication as to their intention, and effectively is a starting point.
The general consensus, however, was that the prenuptial agreement was not the place to deal with care of the children, although schooling could potentially be covered.
4. What should you do if you are concerned about duress
Nicholas Cusworth QC pointed out that practitioners must remember that it is the parties’ decision to enter into these agreements. Our job is to advise them about the terms rather than prevent them from signing. As long as you have written a very firm letter to your client then you have discharged your duty.
On the flip side, writing this letter of advice does not necessarily assist the client in the longer term! If, having received advice, they still enter into the prenup, they are then all the more bound by it.
5. What should alert practitioners about international issues when drafting
All parties agreed that it was usually fairly clear, but the client (and we as lawyers) need to think forward as to whether the parties are likely to live in in another country in the future. It is important to ensure that you advise your client to take advice in other jurisdictions, and they must realise that the agreement can potentially bind them in those jurisdictions.
6. Compensation clauses
Phillip Marshall QC commented that he tended to include a check list of the issues the agreement had regard to, which would include compensation. Most of the experts concurred as it is useful when the court looks back to establish that the parties considered this element and took it into account in the drafting. There were concerns from some of the panel that compensation is a legal issue and this is law for lawyers – it does not simplify the issues for the parties involved.
If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk