Law Commission publishes consultation on pre-nups

Published on 14 Jan 2011 under category: article

The Law Commission has this week revealed proposals for the recognition of pre-nuptial agreements in the UK. Pre-nuptial agreements, which are currently unenforceable in the courts of England and Wales, enable a couple to enter into an agreement which would prevent either party from seeking ancillary relief on divorce. The current position, established in the recent case of Radmacher v Grantino [2010] UKSC 42, leaves it open to the court to decide on a case-by- case basis whether or not any such agreement would be enforceable. Such a system according to the paper, can ‘lead to uncertainty and expensive litigation, and there have been calls for statutory reform’.

The consultation paper explores a range of options, considering issues such as whether the agreement would be terminated by the expiry of a certain time frame, or the birth of a child within the marriage. It looks however that agreements which fail to provide for any issue, or that would leave one party dependent on the benefit system will be unenforceable.

The paper ‘provisionally proposes’ that courts will enforce agreements that are both in writing and where each party has sought legal advice prior to entering the agreement. It is also suggested that the party wishing to rely upon the agreement should have fully disclosed their financial circumstances.

If you require advice on Family Law, please call Jeannette Redway on 020 7831 0101