Legally binding ‘prenups’ win a firm proposal

Married couples and civil partners would know their wishes regarding property or finances would be upheld if their relationship breaks down

A so-called “prenup” law that allows a couple to set the terms of a divorce before they get married has been put forward by the Government’s law reform advisers.

Currently, couples can make pre- and post-nuptial agreements but they are not binding and the parties cannot be certain they will be upheld.

A report from the Law Commission, Matrimonial Property Needs and Agreements, includes a draft Bill which, if implemented, would bring legally-recognised “qualifying nuptial agreements” into effect. They would enable married couples and civil partners to make a binding agreement about how their property or finances should be shared if their relationship breaks down, the Commission said.

Professor Elizabeth Cooke, Law Commissioner for property, family and trust law, said: “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.

“Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable. We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state.”

As part of a package of measures, the Commission has also recommended that the Family Justice Council, the non-statutory advisory body made up of representatives from the family justice system, produces guidance on financial needs.

Guidance would explain the outcome a judge would aim for in determining a settlement, including achieving eventual financial independence.

Ms Cooke added: “We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other’s financial needs, or for their children.

“The measures we are recommending would help couples understand and meet their financial responsibilities and, where appropriate, achieve financial independence.”

Family lawyer Amanda McAlister of Slater & Gordon said: “The Law Commission recommendations are to be welcomed for their potential to reduce conflict and costs for those who are seeking to end their marriage or civil partnership.

“But it is vital any changes in this area must recognise that family law, and particularly divorce and separation settlements, are inherently complex – a couple with no children who are seeking to end their marriage or civil partnership after five years will have very different needs to those who have been married for 15 years with three children.”

PA

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