Binding 'pre-nup' law for couples proposed

A silhouetted couple arguing Pre- and post-nuptial agreements could become legally binding

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Couples in England and Wales would be able to legally agree the terms of a divorce before marrying, under a new law being put forward.

The Law Commission believes making pre and post-nuptial agreements legally binding will make it easier for couples to manage their finances after a split.

Currently, married couples and civil partners can make agreements but courts do not always uphold them.

The commission advises the government on updates to the law.

Start Quote

Eric Tansley

If I do get married again, a pre-nuptial agreement would be absolutely critical”

End Quote Eric Tansley

It says that should the proposed law be enacted, married couples and civil partners would be able to make a binding agreement about how their property or finances should be shared if their relationship breaks down.

The measures are expected to be particularly popular with those considering second marriages who want to protect property for their children.

'Commodity'

Harry Benson, of the Marriage Foundation, said he expected such agreements would only be used by a small minority who had a lot to protect.

"What you are essentially saying is, 'My money is more important than our commitment.'"

But divorce lawyer Sarah Anticoni, a partner at law firm Charles Russell, said she could foresee such contracts becoming much more common.

Analysis

The Law Commission takes the view that couples should be able to have a grown up discussion about finance and attitudes to finance before entering a marriage or civil partnership.

It may not be romantic, but it is practical.

Especially for those considering second marriages, who want to ring-fence some or all of their assets for their children.

These agreements will be in the form of binding contracts and mean that there need not be an equal division of assets between a separating couple.

Property, inherited money and other assets can be preserved for one of the parties.

If the financial needs of any children and the couple are met on separation, partners can take back what they had brought into the marriage and protected in their nuptial agreement.

Not so much "for richer and for poorer", as "what's mine remains mine".

"They will turn from being a luxury, probably into a commodity."

She said the Law Commission had given clear guidance that any agreement would need to meet people's needs.

This, she added, included somewhere to live, money to live on and to have in mind that there may be children.

The Law Commission has also laid out conditions in order for the marital agreements to be binding, which include:

  • Both partners must have had legal advice
  • Both partners must have disclosed all relevant information about their finances
  • A pre-nuptial agreement must have been made at least 28 days before the wedding or civil partnership

Prof Elizabeth Cooke, the law commissioner for property, family and trust law, said that the change would give couples "autonomy and control, and make the financial outcome of separation more predictable".

"Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect," she added.

Divorce law specialist Christine Patterson, of Shakespeares law firm, said divorcing couples currently faced a "postcode lottery" in the courts.

Courts in northern England and Scotland were less likely to view claims for large lifelong maintenance payments as favourably as those in southern England - partly due to property prices in the south, she said.

'Twice shy'

Eric Tansley, who went through a long and difficult divorce, told BBC's Breakfast he wished the arrangement had been available when he split up with his wife.

"I'd inherited a considerable sum of money from my father a few years ago and endeavoured to have that protected but there proved to be no way of doing so.

"And so it's just in the pot and it's been dissipated. I just so wish that I could have kept that separate," he said.

"If I do get married again, a pre-nuptial agreement would be absolutely critical, both for my own protection and for that of the interests of my children, and clearly at the moment it's very much a case of once bitten, twice shy for me."

The government will now consider the Law Commission's recommendations.

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