Prenup protocol reduces chance of court challenge

By Staff

Counsel can insulate their marriage contracts and cohabitation agreements from challenge by following some simple rules, Toronto family lawyer Brahm Siegel tells

Siegel, senior partner with Nathens Siegel Barristers LLP, developed his “Compact” for prenups after becoming frustrated with the rate at which parties turn around and attack the agreements, often successfully.

“As family lawyers, we basically seem to wear two hats at the same time — we encourage people to get prenups, but corners get cut, and when the marriage goes sour, we’re the first ones to say we can have that set aside,” Siegel says. “I thought there must be a better way for all lawyers to be on the same side, and agree on one protocol for drafting these agreements in a way that is as bulletproof as possible, so that we can have less litigation and more certainty.”

Gathering best practices from colleagues, Siegel came up with the following seven rules, which he now applies to his own cases, regardless of the complexity of a client’s situation.

“Whether it’s an agreement that takes five years to negotiate or a super simple one that’s done within three months, the protocol is the same,” he says:

  • No work starts unless there's a lead time of at least four months before the wedding
  • Each party has his or her own lawyer from the outset, before negotiations start
  • Each party provides a financial disclosure brief prior to negotiations
  • At least one without-prejudice meeting shall occur attended by both parties and their respective counsel
  • Lawyers report fully to their clients on the results of the four-way meeting
  • Term sheets are prepared and approved before drafting begins
  • The agreement is drafted and signed with certain key clauses based on previous case law

Depending on what the parties to a contract wish to include, the recommended “key clauses” tackle common issues identified in previous challenges of prenups and family law agreements, Siegel says. They deal with such issues as releases and waivers, summary judgment and bifurcation, and are informed by leading Supreme Court cases on point.

“The courts take a very patriarchal oversight approach to these agreements, and just because you released each other from spousal support doesn’t mean the court will agree,” Siegel says. “But if you follow all the steps here, the hope is that the contract will be pretty bulletproof because clients are going to be fully aware of the consequences and the reality that could befall them when they agree to certain terms.”

Since he began using the protocol, none of Siegel’s agreements have been tested in court, but he says that’s partly explained by the limited wiggle room they give parties to launch a successful challenge.

Siegel says many lawyers across the country have adopted the protocol for their work on prenups and cohabitation agreements, and he regularly receives good feedback and referrals from colleagues as a result.

However, he says he often has to enforce the first rule, even if it means losing some business.

“You get calls from people who say their daughter is getting married on Sunday, so they want the prenup drawn up for signing just before the final dress fitting,” Siegel says. “If someone comes to me three months ahead of the wedding, I tell them I’m not even going to meet them because I don’t want to get their hopes up. They can come back after the honeymoon, and we’ll take about a marriage contract.

“If they want to find a lawyer who will do it for them now, they can, but I tell them to be careful because those are exactly the types of contracts that end up being attacked,” he adds.

Siegel says parties are most likely to push back on the requirement for a four-way meeting, but he insists that it serves a useful purpose.

“This is a kind of reality test when all the things you didn’t think were issues come out,” he says. “The good thing about doing it in person is that it’s hard to really alienate someone when you’re sitting across from them, having a croissant, and being careful what you say.

“The important thing for lawyers to remember is that the parties are usually on good terms when they come to you about a prenup or cohabitation agreement, and the last thing you want to do is make things worse,” Siegel adds.

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