LEGAL MATTERS
Pre-nups could become legally
binding under new law
arital agreements including pre-nups and
post-nups could become legally binding
without the need for court approval under
a proposed new law.
At present, such agreements are not legally
binding although there has been a growing trend
for courts to uphold them unless they are unfair
to one side or the other.
Now the Law Commission, which advises the
government on legal matters, wants to introduce
“qualifying nuptial agreements” which would be
enforceable contracts in their own right, not
subject to the scrutiny of the courts.
The commission’s report says: “The qualifying
nuptial agreement will be a reliable way for
couples to decide in advance how their property
will or will not be shared, without having the
fairness or unfairness of their agreement
scrutinised by the court.
“We have built in a number of safeguards to
ensure, as far as is possible, that such agreements
are only made knowingly and willingly, and
without giving rise to hardship.”
The commission says that an agreement would
only be a qualifying nuptial agreement if it meets
certain requirements when being drawn up. Both
sides would need to receive independent legal
advice and both must fully disclose all their assets
in advance.
It will not be possible to use the agreements to
contract out of making provision for either party’s
financial needs. The commission says: “We make
it clear that an agreement which leaves a spouse
or former spouse
without reasonable
provision for income,
housing, and the other
elements that family
lawyers understand as
“needs”, will continue
to be subject to the
courts’ control.”
The commission
has put forward a
draft Bill, the Nuptial
M
Agreements Bill, which would introduce
qualifying nuptial agreements, subject to
parliamentary approval.
Justice Minister Simon Hughes said the
government will now consider the proposals in
detail. He said: “The government is committed to
improving the family justice system so divorcing
couples can achieve the best possible outcomes
for themselves and their families, using the courts
only where necessary.”
Please contact Daniel on 01782 846 441 or
email [email protected] if you would
like advice on any aspect of divorce and family
law.
April/May 2014 59