The Ministry of Justice (MoJ) is still considering whether or not to legalise a form of prenuptial agreement recommended by the Law Commission.
In a newly published report on the implementation of legal proposals made by the Commission, the Ministry notes that:
“The Law Commission published its final report on Matrimonial Property, Needs and Agreements in February 2014.”
This made a number of recommendations, including a call for clarification of the law defining financial needs on divorce or the dissolution of a civil partnership in order to encourage greater consistency in financial settlements. The Commission also proposed the introduction of a modified form of prenuptial agreement called a ‘qualifying nuptial agreement’. These would essentially allow couples to make a binding agreement on the division and disposal of their assets, but one which would apply only after their respective needs, as well as the needs of any children, had been met.
In what is effectively a progress report, the Ministry of Justice claims the recent publication of guidance on finances for separating couples and unpresented litigants in person partly addresses the first call. In addition, it cites work on an “online tool supported by formulae” – i.e. a website – to help couples splitting up make their own financial arrangements.
Tellingly, the MoJ notes, however, that these projects did not “require legislative reform”. Meanwhile, it has almost nothing to report on qualifying nuptial agreements. We are told simply that it is still “considering the recommendations” and will “respond in due course”.
I can’t say I’m all that surprised. Governments are traditionally shy of reforms which would require complex legislative changes. It’s a big job – one that requires a lengthy look at the many nuances at play and the careful crafting of legalisation sufficiently robust to withstand the scrutiny of MPs and peers as it proceeds through Parliament – and eventually, the forensic analysis of judges and lawyers. Better to step back and make absolutely sure that a ’let sleeping dogs lie’ approach wouldn’t do instead.
Back in 2011, the Government chose not to implement recommendations by the Law Commission for reform of cohabitation law. The legal system was in state of flux, they claimed, and similar Scottish legislation did not provide a “sufficient basis” for implementation in England.
I believed then – and still believe – that this was a mistake. But I am a frontline legal practitioner and I am regularly confronted by the day-to-day realities of the mismatch between the social realities of 21st Century Britain (more and more cohabitation) and its legal realities (cohabitants have no financial protection in law).
My suspicion is that the government will eventually brush aside qualifying nuptial agreements in much the same way: too complex and time-consuming to bother while ministerial hands are fully occupied by the manifold complexities of Brexit.
And perhaps that isn’t such a bad thing. ‘Prenups’ remain controversial among lawyers – at least those of us on this side of the Atlantic. They do present a real risk of unfairness in marriages characterised by a sharp ‘inequality of arms’: a wealthier partner can pressure and mislead the less prosperous party into signing a document that may not really be in their best interests.
And I suspect this a debate the government would much rather not be having right now.
Read the full report here.