Pre-nup consultation paper is published at last
13 January 2011
The Law Commission of England & Wales has
released its long-waited consultation paper on making pre- and
post-nuptial agreements legally binding.
The paper has been ready for publication since
mid-2010, but was held up awaiting the Supreme Court decision in
Radmacher v Granatino. That ruling, issued in October, pronounced
that the courts should recognise "fair" agreements between spouses
or civil partners, or those contemplating marriage or civil
However, as the Law Commission's paper points
out, a change in statute law is necessary before marital property
agreements can become fully and predictably binding. "It is still
down to the courts to decide on a case-by-case basis how much
weight to give to any agreement the couple may have made", says the
Commission expert panel, chaired by Professor Elizabeth Cooke.
The panel points out that expensive litigation
often follows in big-money divorces where one spouse applies to a
court for ancillary relief despite the existence of a marital
property agreement - as happened in Radmacher.
The paper does not set out a preferred path
for new legislation but reviews the current law, discusses options
for reform and puts forward questions for consultees.
It also includes some interesting academic
research into the views of family lawyers, and how they approach
marital property agreements at the moment.
The consultation, which closes on 11 April
2011, has already attracted much comment from family law firms and
Michael Gouriet, partner at Withers LLP, said
the consultation is "an opportunity to prevent people playing the
system by moving to England to get more money on divorce than they
would get overseas".
One of the unintended effects of changing the
law would be to complicate pensions. It could, for example, limit a
pension sharing order to the benefits earned during the period of
the marriage - as is already the case under Scottish law.
Law Commission (PDF