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Law Commission plans prenuptial agreement law

Prenuptial agreements would be recognised in law under soon-to-be-published proposals by the Law Commission, The Times reports.

Couples who plan to marry will be able to create legally binding agreements about precisely how money, property and other assets would be shared or ring-fenced in the event of divorce. Currently, prenuptial agreements have an uncertain legal status in English family courts and are only recognised at the discretion of the judge.

In the much discussed 2010 case of Radmacher v Granatino, the Supreme Court held that courts should give weight to prenuptial agreements “freely” entered into, unless it would be “not be fair” to do so.

According to the Times report, the Law Commission’s report, to be published later this month will include a draft bill which is expected to attract cross-party support. The proposed law will also reportedly  include a recommendation that both parties seek legal advice before entering a prenup, and a requirement that parties to such agreements not be left in need following a divorce. Maintenance payments for a limited period only are also probable, the paper claims.

The Commission, an independent organisation which reviews law and makes recommendations for reform, began consultation on the issue of prenuptial agreements in 2011.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Luke says:

    This is absolutely MASSIVE news, it could change everything if it was fully implemented – but the devil will be in the detail – and I include in that the length of maintenance payments and how they are calculated.

  2. Andrew says:

    I hope the report will explain the logical fallacy which leads to the view that it would not be “fair” to hold one party to his or her word but it would be “fair” to the other party to allow the first party to refuse to honour his or her word.

    As for “need”: that is a subjective concept. The ONLY exception to the rule that prenups are final and binding should be the case where they would cause undue hardship to minor children – in which case it may be necessary to postpone enforcement until there is no minor child who would suffer undue hardship.

  3. Tristan says:

    “Not be fair” means business as usual for the judges who reserve the right to create work for themselves by interfering – all dressed up in the guise as supposedly being in the interests of children of course.

    The non-enforceability of pre-nups is one of the main reasons why people with assets shy off marriage altogether.
    And that will remain the case as long as judges are empowered to intervene because intervene they certainly will, giving themselves the excuse that it’s for the children’s sake. In this no fault divorce age why put your hard-gained treasure at risk by potentially saddling yourself with the long term burden of having to maintain someone who has grown to hate you?

  4. Luke says:

    The “Not be fair” excuse would be ridiculous, because they have already stipulated that both parties would have to see their own lawyer and can be advised on drafting up the contract. So each individual would know exactly what they are letting themselves in for and can make an informed decision on whether to proceed or not once they know the view of the other party.

    So what should happen is if the Judge decides the binding prenuptial contract is “not fair” ? He should have the power to go after the lawyer in question for damages if the client had been poorly advised. This would cover the shortfall as the Judge perceives it.

    Of course that would be going after ‘one of their own’ – I’m not sure that would be too popular 🙂

    If the client got the advice and ignored it then I’m afraid that should be tough s**t. To insist on more would in my view mean they had married under false pretences.

    The other option the Judge could take to circumnavigate the pre-nup would be to push the child maintenance award to sky high levels – I don’t know if they could get away with that – but I would be concerned that some of them would try to see if it was possible.

    Like I said before, the devil will be in the detail.

  5. JamesB says:

    I think this ruling was good. I hope the new law wont be just for the law and the rich who can afford expensive prenups. Hope if it’s written on loo roll, signed by both parties and witnessed reasonably, then will be valid.

  6. JamesB says:

    By appropriately witnessed, I mean the signatures by other members of the community, like on signing a will.

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