Supreme Court Justice Lord Wilson of Culworth raised questions about the legal validity of prenuptial agreements at an event this week.
Speaking to law students at the University of Bristol, the 71 year-old Deputy President of the Supreme Court asked whether:
“We have now reached the stage in which, if acting with appropriate care and understanding, parties should be allowed to elect the sort of marriage which they want.”
Some held the view, he said, the spouses should not be allowed to make their own decisions in relation to the financial side of marriage, given the institution’s public status. In this view, prenuptial agreements represented a watered-down version of marriage he explained.
“One view is that in those circumstances parties should not be able to opt for marriage-lite, in which the law’s verdict about the extent of their obligations on divorce in the light of all the circumstances which have arisen is overridden by what they chose to agree perhaps many years earlier.”
But, he asked:
“I wonder… whether by modern standards that view is too patronising. Does it make our law inappropriately intrusive into personal, adult arrangements?”
Her referred to the precedent-setting case of Radmacher v Granatino in 2010, in which the Supreme Court ruled that prenuptial agreements should be binding as long as it had been freely entered into, except where:
“…in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
But the nature of such circumstances “may need further attention” His Lordship claimed.
The family courts needed to consider, he continued, “how far individual couples should be free to re-write that essential feature of the marital relationship as they choose.”
Read Lord Wilson’s speech here.