Why this lawyer won’t do prenups

0:00

One family lawyer won’t go near prenups while another has no issue with them. They reveal the pros and cons of being the one to draft it.

Gone are the days of prenups existing only in the world of the super wealthy.

Today, family lawyers like Jodylee Bartal are seeing an increasing number of couples entering into these financial agreements before they say ‘I do’.

“Often I have clients come to me that operate and own businesses together with other people who want to protect the structure and the value of their business from matrimonial breakdown,” Bartal tells Insight.

She adds that those who are entering into a second marriage, especially if they’ve been financially burnt before, see prenups as a way of avoiding financial heartbreak a second time around.

Bartal says the agreements can deal with property and spousal maintenance.

But while Bartal has no qualms about drawing up a prenup for her clients, other lawyers are keen to steer well clear due to the disputes they can cause in court.

“The other courts are full of disputes about contracts, financial agreements and another contracts,” Bartal says.

“People use contracts all the time to regulate business and they have fights about them from time to time, it's part and parcel.”

The risk is too high

Family lawyer, Paul Doolan, is one of the lawyers who refuses to do them. Barkus Doolan Family Lawyers, where Doolan is a partner, stopped writing prenups for their clients four years ago. 

While he recommends that people should get a prenup in some cases, he says he’s just not willing to do it.

“The legislation around financial agreements has been poorly drafted from the start,” Doolan says.

“There's been differing interpretations of the laws by different judges over a period of time and there's a great deal of uncertainty still about them.”

Doolan says the risk of being sued by a disgruntled spouse if an agreement is set aside in court due to technicalities is too high.

“People want these agreements for protection and if the intention of these agreements is to give people protection, then the government should pass laws and amend the laws in a way to make them more watertight,” he says.