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Divorce law blog

The future of pre-nuptial agreements

03/02/2014   By: Sue Brookes

At the end of February the Law Commission is due to publish its long-awaited report on whether pre-nuptial agreements should be legally binding. As things currently stand, pre-nups are increasingly taken it into account but there is no guarantee that they will be effective.  The Law Commission will recommend making the position a lot clearer, although we will have to wait to see exactly how they suggest this is done.

In the 2010 case of Radmacher v Granatino the highest court in the land, the Supreme Court, decided that a divorcing couple should be held to a pre-nuptial agreement even if the court might otherwise have made a different decision. However, that is as far as the courts can go and there is still a real risk that agreements will be overturned. This can mean lengthy and expensive court battles where one side argues that the terms of the agreement should be upheld and the other tries to get a more generous settlement.

The advantage of the discretionary system we have in this country for sorting out money on divorce is that in theory a court is able to come up with an answer that takes into account each family’s individual circumstances. The flipside of this of course is that the wide range of possible outcomes makes it very difficult for people to know what settlement to expect, even when they have expert advice from specialist family lawyers.

The challenge for the Law Commission is how to get greater certainty into the system without the law being so inflexible that it leads to unfair decisions. There will need to be safeguards like making sure that the agreement is based on accurate financial information, that there is no unfair pressure to sign up to it and that it doesn’t leave one spouse with millions and the other with nothing at all. But it seems certain that we’re going to see clear rules that make it easier for couples to decide when they get married what should happen if sadly there’s a divorce down the line.

There’s no guarantee that the Government will act upon whatever recommendations the Law Commission makes. They have ignored previous reports including one recommending much needed changes to the law about cohabitation to protect people who aren’t married and who have no real rights if their relationship breaks down. Nevertheless there seems to be general support from all the political parties for pre-marital agreements in keeping with the push for people to be able to make their own decisions, for examples by sorting things out through mediation or collaborative law.

In the meantime, despite the current uncertainty and whatever the outcome of the Law Commission report, it is the case that those with a pre-nuptial agreement will have far more protection than those without.

Sue Brookes
Senior Solicitor (Family Lawyer)

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