The Government’s law reform advisers have put forward a proposal for a “pre-nup” law that would allow a couple to agree the terms of their divorce before they get married. At present, the courts will enforce prenups in most circumstances where they are satisfied that the parties have entered into them willingly and after receiving independent legal advice, but there is no guarantee that they will be upheld.
"Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect," Professor Elizabeth Cooke said.
"Qualifying nuptial agreements would give couples autonomy and control and
make the financial outcome of separation more predictable," she added. "We have built in safeguards to endure that they cannot be used to impose hardship on either party, nor escape responsibility for children or to burden the
state."
Prenups would be binding if there has been no undue influence, the parties have received independent legal advice, have been signed at least 28 days before the wedding, and that there has been full disclosure.
It is 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.
The Government will now consider the Law Commission’s recommendations, although sources have revealed that ministers broadly welcome the proposals.
"Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect," Professor Elizabeth Cooke said.
"Qualifying nuptial agreements would give couples autonomy and control and
make the financial outcome of separation more predictable," she added. "We have built in safeguards to endure that they cannot be used to impose hardship on either party, nor escape responsibility for children or to burden the
state."
Prenups would be binding if there has been no undue influence, the parties have received independent legal advice, have been signed at least 28 days before the wedding, and that there has been full disclosure.
It is 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.
The Government will now consider the Law Commission’s recommendations, although sources have revealed that ministers broadly welcome the proposals.
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