04 February 2014
Prenuptial Agreements Set to Gain Legal Status
The use Prenuptial Agreements may change the nature of future divorce cases in England and Wales, if ministers back plans devised by the Law Commission.
Under the blueprint, Britain's divorce laws will be changed to accommodate the use of documents designed "to consider the treatment of pre-nuptial, post-nuptial and separation agreements".
One key element will be to protect the assets that individuals bring into a marriage, meaning a spouse who divorces cannot use this as a means of gaining extra wealth they had no part in creating.
The review of the issue by the Law Commission was launched in 2011, after a groundbreaking decision in 2010 produced a case law precedent that threatened to undermine the previous practice of ignoring Prenuptial Agreements; which are also called "pre-nups".
In the case of Radmacher v Granatino, the Supreme Court decided that Courts should give consideration to any agreements "freely" consented to by both parties, unless it would "not be fair" for this to happen.
This judgement did not set in stone how Courts should decide on these questions of freedom and fairness, one reason the Law Commission wishes to create a more certain legal status for prenuptial agreements.
Among the details of the recommendations are that the two parties take legal advice before drawing up a prenuptial agreement, and that neither should be left in need after a divorce. Both of these proposals may help safeguard against any agreement being slanted unduly towards one or other partner.
Whether the proposals can be made into law in the current Parliament is uncertain. To do so would need ministers to be convinced there is an urgent need. With not much more than a year until the next general election, it's possible a public consultation could take place, with any firm legislative proposals being contained in party manifestos. However, such issues may also be the subject of lengthy debates within parties.
One feature of the Radmacher v Granatino case is that neither of the parties are British subjects and their prenuptial agreement was made in Germany. One issue that may be the focus of contention is whether an agreement made outside the UK will be applicable in Britain.
By Francesca Witney