Family lawyers back pre-nuptial deals for British couples

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The Independent Online

Rich husbands and wives who wish to protect their fortunes from the lottery of the divorce courts could soon be able to take advantage of US-style pre-nuptial agreements.

Rich husbands and wives who wish to protect their fortunes from the lottery of the divorce courts could soon be able to take advantage of US-style pre-nuptial agreements.

A long-awaited report published by an influential group of family lawyers calls on the Government today to make "pre-nup" contracts binding on divorce settlements.

The change in the law would put British couples on the same footing as American couples who are able to state exactly what happens to their assets after separation. Demand for pre-nuptial agreements in this country has soared after a number of a high-profile divorces including that of Ray Parlour, the former Arsenal footballer, who was ordered to pay his former wife, Karen, about 37 per cent of his annual income for the next four years. She will get £444,000 a year for herself and the couple's three children.

The report published by the Solicitors Family Law Association (SFLA), says: "In the course of their work with clients, members have found that an increasing number of couples wish to take steps to minimise the uncertainty of the court's approach to financial arrangements upon divorce and to decide for themselves what a fair settlement would be. "The current law means that financial outcomes are unclear and uncertain, which most families find unacceptable."

Under UK law, pre-nuptial agreements are not "binding instruments of intent" and can be ignored by the judge when the court sets out the terms of a divorce settlement.

But that has not stopped couples signing them, although to date, British agreements have not included behavioural clauses such as the penalty provisions invoked if Michael Douglas has affairs within a certain number of years of his marriage to Catherine Zeta-Jones. But this kind of punishment clause could soon become part of the British pre-nup once the Government legislates to make them enforceable.

The SFLA's report concludes: "On balance, the committee felt that pre-marital agreements should become legally binding subject to an overriding safeguard of significant injustice and also be added as a separate section 25 Matrimonial Causes Act 1973 factor."

It adds: "The committee considered the satellite litigation that might flow to define what "significant injustice" was, but concluded that it was a small price to pay for the certainty of legally binding pre-marital agreements."

More than 153,000 couples divorced in England and Wales in 2003, the third successive annual increase. One-tenth were between couples who had each been divorced previously, double the proportion in 1981.

The report says: "It is an anomalous position that husbands and wives are unable to bind themselves with a contractual pre-marital/partnership agreement, whereas cohabitants can.