Law Commission looking at making pre-nuptial agreements legally binding

   Family Law    May 10, 2024  |  0

The Law Commission is currently reviewing the laws related to financial arrangements after divorce and the dissolution of a civil partnership, a legal framework that has remained largely unchanged for fifty years.

Expected to be published this year, this review has the potential to significantly transform the legal standing of prenuptial agreements within English family law.

The Law Commission’s recommendations could lead to the introduction of “qualifying nuptial agreements.” These agreements would be legally binding, provided they meet specific criteria.

It is understood that the specific criteria would include the requirement for both parties to receive independent legal advice and to disclose their financial assets fully.

Society’s evolving views towards marriage and assets necessitate updating the legal system.

So, what is a pre-nuptial agreement?

A pre-nuptial agreement, commonly known as a prenup, is a written contract entered into by a couple before they marry or start a civil partnership.

It outlines how they wish to divide their assets if they were to separate or divorce.

In recent years, the popularity of prenups has surged in England.

A 2021 study conducted by the Marriage Foundation revealed that one in five married couples married in England since 2000 had some form of a prenup, marking a significant increase from the eight per cent seen in the 1990s.

Are prenups currently legally binding?

In England, prenuptial agreements are not automatically legally binding.

The landmark Supreme Court case of Radmacher vs Granatino (2010) set a precedent that prenups should have “decisive weight” in court, provided they are fair and both parties entered into them freely with a full understanding of their implications.

The ultimate decision however, on whether to uphold a prenup rests with the court’s discretion, evaluated on a case-by-case basis with a strong emphasis on fairness.

Are prenups beneficial?

Prenuptial agreements offer couples numerous advantages:

  • Financial clarity: Prenups provide a clear framework for the distribution of assets, helping couples avoid contentious disputes if they part ways.
  • Protection of assets: They can protect individual assets and inheritance, ensuring personal property and family heirlooms remain within the family.
  • Debt liability: Prenups can specify that each partner is responsible for their debts, preventing one from being liable for the other’s financial liabilities.
  • Reducing conflict: By agreeing on financial matters in advance, couples can reduce potential conflicts and save on future legal costs associated with divorce proceedings.

These agreements represent a pragmatic approach to marriage, recognising the realities of modern relationships.

Why is it important to seek legal advice when drafting a prenup?

Given that prenups are not automatically legally binding in England, seeking professional legal advice is crucial.

A solicitor can help tailor the agreement to your specific circumstances, offering guidance on the legal implications and ensuring the document is as robust as possible.

This process includes advising on fairness and reasonableness, which are critical factors courts consider when deciding whether to uphold the terms of a prenup.

Moreover, an open and honest conversation about the agreement, facilitated by a solicitor, can help ensure both partners fully understand and agree to the terms, reducing the potential for future disputes.

Involving a solicitor early on, well before the wedding is a must and can help avoid any last-minute stress or disagreements, ensuring both parties are comfortable with the arrangements.

For help and advice with family and relationship matters, please get in touch with Alison Green, Head of our Family and Relationship Team at Mackrell.Solicitors on +44 (0) 20 7240 0521 or at alison.green@mackrell.com

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Alison Green
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Alison Green

Partner at Mackrell.Solicitors
Alison has more than 25 years’ experience assisting clients with Family and Relationship matters. Her expertise covers matrimonial work, including divorce and the associated financial and children issues; pre and post-nuptial agreements; co-habitation disputes; civil partnership agreements and the breakdown of civil partnerships.
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