Plans for pre-nuptial agreements to become legally binding

A new law being put forward by the Law Commission would make pre-nuptial agreements legally binding.  The Law Commission, which recommends changes in legislation to the Government, recommends the agreements should be legally enforceable providing both parties have been honest about their finances, they have sought legal advice and the agreement is agreed no less than 28 days before the marriage takes place.

It is believed that making things clear from the start of a marriage will give both parties clarity and a sense of certainty regarding finance and property.  It will also make it more difficult for some unscrupulous individuals who marry wealthier partners with a view to claiming substantial financial reward on divorce.

As the law currently stands in England and Wales, pre-nuptial agreements are not legally binding and cannot be used to limit or oust the jurisdiction of the Divorce Court.

However, following the Supreme Court decision in the case of Radmacher-v-Granatino (2010), a principle has been established that the Court should give effect to a nuptial agreement, that is freely entered into by each party, unless in the circumstances it would not be fair to hold the parties to their agreement.

The Simpson Millar LLP incorporating Foster & Partners view

Comment from Carol Chrisfield, solicitor and Family Law expert

A change to the current law could provide greater clarity and security in relation to pre-nuptial agreements, which will certain benefit those entering into them.

It’s essential to consider what will happen if there is a change in circumstances e.g if a couple goes on to have children, otherwise the changes may render the agreement unfair or reduce the weight to be attached to it.

Generally, prenups are  popular among those where there is a significant disparity of wealth between the parties and for those entering a second marriage, where there are children of previous marriages to protect.

I don’t, however, think younger couples marrying for the first time, with limited wealth, consider a pre-nuptial to be relevant to them.


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