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Divorce law blog

To pre-nup or not to pre-nup - that is the question...

11/01/2011   By:

Should a couple be able to make a firm agreement - before they get married or enter a civil partnership - about what should happen to their property if their relationship ends? Or should the law remain as it stands, that the courts decide if their agreement is enforceable?

In a consultation launched today, the Law Commission is asking the public's views on precisely these questions and ultimately whether or not pre-marital agreements – contracts made by couples before their marriage or civil partnership which are intended to govern their financial arrangements if the relationship ends – should be enforceable.

As was reported on divorce.co.uk on 20 October 2010, the Supreme Court in Radmacher v Granatino went further than ever before in recognising the significance of a pre-marital agreement, upholding that courts should give effect to a pre-marital agreement provided if it is freely entered in to by parties who understand the consequences of it, unless the agreement does not meet the needs of the parties (and their children) on divorce. However, significantly, that decision was made in the context of existing legislation because, as the law currently stands, a couple cannot prevent each other from asking the courts to decide how their property should be shared on divorce.  Moreover, it is still down to the courts to decide on a case-by-case basis how much weight to give to any agreement a couple may have made.  Given the important protection a pre-marital agreement can offer, but also the expensive and lengthy litigation that it can lead to, it is little wonder that there have been calls for statutory reform.

Professor Elizabeth Cooke, the Law Commissioner leading the project, said today:

"Pre-nups are a topical issue.  Under the current law the starting point for the resolution of financial division on divorce is the discretion of the court.  Some feel that where couples have reached agreement, the courts should not be involved; yet the courts' approach is primarily protective and some fee that they should not be wholly excluded.

Our consultation paper considers the arguments for and against reform and examines how a new approach might balance the need for safeguards against exploitation and the creation of hardship.  This is an issue that needs to be handled with care."

The full consultation paper is available at www.lawcommission.justice.gov.uk.  The consultation closes on 11 April 2011.

For further information about pre-nuptial agreements, please contact Caitlin Jenkins or Alison Bull

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