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Divorce law blog

Law Commission recommends 'qualifying' nuptial agreements should be legally binding

27/02/2014   By:

Today the Law Commission published its long-awaited report on whether pre-nuptial (as well as post-nuptial) agreements should be legally binding. To no-one’s surprise, the report recommends that nuptial agreements, which meet certain criteria (so called ‘qualifying’ nuptial agreements) should be made legally binding.

Firstly, how far does the Law Commission’s report go?

As we explained in our blog post earlier this month, the law as it currently stands means that pre-nups (and post-nups) are increasingly taken into account but there is no guarantee that they will be effective. What the Law Commission recommends is that legislation be introduced to make “qualifying nuptial agreements” binding.

The Law Commission’s arguments in favour of introducing “qualifying nuptial agreements” were:

  • Autonomy – the freedom of individuals to choose the financial consequences of ending their relationship, and for that choice to be respected and upheld by law. However, the Law Commission’s recommendations do not go so far as to allow complete autonomy – a “qualifying nuptial agreement” must meet certain criteria, including meeting the needs of the financially weaker spouse.
  • Certainty – it is important for couples to have certainty, and to avoid the stress and cost of future litigation.
  • Consistency – the introduction of “qualifying nuptial agreements” would bring the laws of England and Wales in line with the laws of other jurisdictions. In an increasingly international world, consistency is important. The Law Commission also commented on the potential boost to the economy if such certainty encourages freedom of movement of wealthy individuals.

What are “qualifying nuptial agreements”?

In short, the Law Commission recommends the following conditions for an agreement to be a “qualifying nuptial agreement”:

  • For those signed before marriage, they must be signed at least 28 days before the marriage or civil partnership.
  • There must be no undue influence.
  • It must be properly executed – what this means is that it must be in writing and made as a Deed (a requirement of property law).
  • It must contain a statement signed by both parties that he/she understands it is a qualifying nuptial agreement.
  • There must disclosure of material information about the other party’s financial situation.
  • Both parties should receive legal advice on the agreement.

Where does this leave the public, and the profession?

The recommendations are a big step forward in divorce law reform. However, it is important to note that:

  • The law has not changed yet. It might take time for any recommendations to be considered or enacted as law. 
  • There’s no guarantee that the Government will act on these recommendations. 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.
  • The current status of pre-nuptial (and post-nuptial) agreements is that they are not automatically binding or enforceable.
  • If the Law Commission’s proposals are adopted, and made law, we could face a two tier system of “qualifying nuptial agreements” and “other agreements” that don’t meet criteria set by law.
  • As with the current status of pre-nuptial (and post-nuptial) agreements, even if the Government acts on the recommendations, there might still be scope for agreements to be challenged on the basis of meeting “needs”.

It is important for anyone entering into or considering entering into a pre-nuptial, post-nuptial or separation agreement to take specialist advice in light of these proposals. If you would like to talk through the options for preparing such an agreement, or how these proposals might impact on an agreement already entered into by you and your partner, please contact us.  

Tricia Ashton

Senior Solicitor (Family Lawyer)


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