Pre-nups and politics: Dear Prime Minister…

An open letter to Rt Hon Gordon Brown MP, Prime Minister.

Dear Prime Minister,

Joshua Rozenberg interviews the Chairman of the Law Commission in today’s Daily Telegraph. Three family law matters are touched upon: reform of ancillary relief law, pre-nuptial agreements and cohabitation law reform.

I note that there will be no reform of the law in relation to the division of a couple’s assets. The courts will continue to apply the Matrimonial Causes Act 1973 and I’m pleased about that. As a family law solicitor, I approve of the discretion given to the judges: it helps couples across the country who don’t have “big money”. I am very much against the equal division of assets as in other countries, because there are occasions when 50:50 cannot be fair. No two cases are the same.

I also note that the Law Commission will be examining the legal status and enforceability of pre-nuptial agreements. I can’t think why valuable public resources are going to be spent helping the very rich to protect their assets.

In other countries, a pre-nup is usually drawn up by the wealthier partner so that his or her legal obligations can be dispensed with. It is a gun to the head at a time when the future spouse is emotionally unfit to negotiate a commercial bargain. Thus pre-nups cannot be compared to commercial contracts, negotiated at a distance by willing parties who each stand to benefit equally from the agreement.

At present, pre-nuptial agreements can be upheld in this country – but importantly, judges aren’t legally bound to do so. Reverse this balance, and it will be for the poorer spouse to mount the challenge. In the US, unscrupulous spouses can insert clauses into these agreements to ensure that if a challenge is made, the payment is immediately reduced to nil. In such circumstances, the poorer spouse can come away with little or nothing.

Here in England and Wales, a pre-nuptial agreement is likely to be upheld if it is properly drafted with full disclosure, with both parties receiving sound legal advice before signing. Legislation isn’t necessary.

So why spend time and money on this review? Beats me – particularly as any proposed changes would not become effective until 2014 at the earliest!

Instead, Prime Minister, why don’t you do the right thing and introduce legislation to help millions of cohabiting couples and their families? The Law Commission put forward its proposals last July; the legislation is ready and waiting for your draftsmen.

This would be a courageous landmark decision on your part and it is desperately needed. Only this week, I had to advise a woman with a family that her remedies in law were almost non-existent. Like other family lawyers, I am encountering such cases with increasing frequency.

Please assist these people. We can’t stop people living together – but with reforms proposed for pre-nuptial agreements, it appears that the Government is only going to help the “haves”. What about the “have-nots”?

Yours sincerely,

Marilyn Stowe

Senior Partner, Stowe Family Law LLP.