The intention is to start the project in 2009 with the aim of reporting and drawing up a draft parliamentary bill by 2012. This is part of the latest review of the law, which will include (amongst other things) a review of the law relating to intestacy, treason and level crossings, but not a review of the law concerning finance on divorce, to the chagrin of many divorce lawyers.
The Law Commission will also look at so-called mid-nups or post-marital agreements entered into by couples after marriage to determine the division of their assets after divorce. At present pre-nuptial agreements are persuasive in the courts but not strictly legally binding. The recent case of the so-called “career divorcée” Susan Crossley reached the headlines when the court looked set to uphold the pre-nup she entered before her fourth marriage, and the trend in the courts is to give significant weight to fairly drafted agreements.
The Law Commission is aware of the view that the fact that pre-nuptial agreements are not currently binding may deter people from marrying or entering into civil partnerships in some cases. The issue may be of particular importance to those who have experienced divorce and wish to protect their assets, however extensive, from a future claim for ancillary relief. It may also be crucial for couples who have entered into pre- or mid- nuptial agreements in countries or jurisdictions in which such agreements are enforceable.
Whether or not the Law Commission recommends that they become legally binding and enforceable, or will leave it up to the courts to decide (as is the case now) remains to be seen. Wealthy fiance(é)s and the legal profession await the results of the review with interest. Hopefully the results of the Law Commission’s review of pre-nups will not be shelved by the Government in the same way that their review of cohabitation law was.
Meredith Thompson