The Government’s law reform advisers have put forward a proposal for a so-called “pre-nup” law that would allow a couple to set the terms of their divorce before they get married.
At the moment, married couples and civil partners can make pre and post-nuptial agreements but they are not binding and the parties cannot be certain they will be upheld.
However, a report from the Law Commission, entitled Matrimonial Property Needs and Agreements, includes a draft Bill, which, if implemented, would bring legally-recognised “qualifying nuptial agreements” into effect.
These would enable couples to make a binding agreement about how their property or finances should be shared if their relationship breaks down and would make it easier for couples to manage their finances after a split. It is expected to be particularly popular with those considering a second marriage, who want to protect property for the children of their previous relationship.
In addition, the Law Commission has given clear guidance that any agreement would need to meet the partners’ needs, including a place to live, money to live on and consideration for any children involved.
It has also laid out conditions in order for the agreements to be binding, which include that both partners must have had legal advice and that both must have disclosed all relevant information about their finances.
In addition, the Law Commission says, a pre-nuptial agreement must have been made at least 28 days before the wedding or civil partnership takes place.
According to Professor Elizabeth Cooke, the law commissioner for property, family and trust law, the change would give couples autonomy and control and make the financial outcome of separation more predictable.
The Government will now consider the Law Commission’s recommendations, although sources have revealed that ministers broadly welcome the proposals.
Mackrell Turner Garrett Solicitors in London
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