I used AI to help me plan a recent holiday. I jumped on the trend of using it to make a personalised work caricature. I asked it to create a birthday poem for a friend. AI certainly has its uses, and it is here to stay, but when does using AI turn from being a great idea to a risky one?
In my view, it is when it comes to drafting legal documents. As a lawyer, I would be hesitant for anyone to use AI for such a purpose. AI might produce something which looks legal and it may sound legal but,
- is it valid?
- is it legally binding?
- does it achieve what you want ?
- is it enforceable?
In order to examine the potential risks, let’s take a look at prenuptial and postnuptial agreements.
Prenuptial and postnuptial agreements
A prenuptial agreement is a written contract entered into by a couple ahead of their marriage or civil partnership which can set out their intentions as to what should happen to certain assets in the event that they separate.
Such agreements are becoming an increasingly common way to protect or "ringfence" wealth already belonging to one or both parties before they marry or enter into a civil partnership, or which is likely to be gifted to or inherited by them in the future. A postnuptial agreement has the same purpose as a prenuptial agreement but is entered into after a wedding or civil partnership has taken place, provided the couple are still living together.
In Scotland, the widely held view is that a properly prepared agreement which meets the three criteria set out below when entered into, will be upheld if challenged in court.
- The terms of the agreement must be fair and reasonable at the time it was entered into;
- Both parties have had the opportunity to take independent legal advice prior to signing;
- There has been no pressure or undue influence exerted to induce a party to sign.
Risks of using AI
- AI ‘hallucinations’: whilst endeavouring to be as helpful as possible, AI has been known to fabricate case law or statutes;
- Lack of confidentiality: solicitors are regulated by the Law Society of Scotland and are subject to stringent GDPR rules and regulations. Clients can be confident that personal information shared with their solicitor will be stored securely. The same assurance cannot be given once personal and financial data is inputted to open AI platforms. Many AI providers store input data to train future models, meaning the protections offered by legal professional privilege or GDPR are lost;
- Lack of human element: AI cannot provide tailored legal advice as to whether, looking at all the circumstances, the proposed terms of any agreement are fair and reasonable. It has no past experience on which to rely. It lacks intuition and empathy;
- Cost: using AI is likely to be cheap in the short term but expensive in the long run. Your AI agreement may well be drafted for free, but if it is inept to achieve its objectives and or it is unenforceable , fees will be incurred when , re-negotiating terms and drafting a new agreement. Worst still, its inadequacies may only emerge on separation. An AI-drafted agreement may also be more likely to give rise to challenge before a court and whilst this point has not yet been tested in the Scottish courts, it may be the case that the fact that AI was used to draft it (and without input from a lawyer) creates a higher chance of it being set-aside;
- ‘Off the shelf’ wording: AI will use generic wording. The reality is that every couple, and their circumstances, are different. Lawyers need to consider and create bespoke agreements to ensure each couple’s needs and wishes are met; and
- Lack of legal understanding: AI can digest or regurgitate legislation, but does it fully understand the law, its nuances and how to apply it? Does it understand the concept of blended families and how complex family arrangements will require to be taken into account? Vague or ambiguous language in an agreement risks client wishes not being met.
The value of professional legal advice (from a human!)
Instructing a lawyer ensures that your all steps are taken to give your prenuptial or postnuptial agreement the best chance of being upheld if tested.
For further advice on all family law matters, please get in touch with our family lawyers.
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