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Law Commission tackles prickly issue of "pre-nuptials"

11 June 2008

The Law Commission announced on 11 June 2008 that it is to undertake in 2009 a review of the legal status of agreements made between spouses or civil partners (or those contemplating marriage or civil partnership) although its suggested reforms will not be published until 2012.

This project will examine the status and enforceability of agreements made between spouses and civil partners concerning the division of their property and finances in the event of a divorce, dissolution or separation. Such agreements are usually made before a marriage or civil partnership ("pre-nups") or during the course of the marriage or civil partnership ("post-nups").

Unlike other jurisdictions such as the United States, Israel or France, at present such agreements are not binding in England and Wales upon the dissolution of a marriage or civil partnership and although the Courts are increasingly willing to have regard to the contents of such an agreement when determining financial relief, the weight given to them varies from case to case depending on the circumstances. The hope therefore is that the Law Commission's review will put an end to the uncertain approach and provide clarity to an agreement's status and enforceability.

Sue Andrews, partner and head of family law at B P Collins welcomed the announcement of the review saying "This is long overdue. There should be no reason why married couples or civil partners (or couples contemplating either) should not, provided there are safeguards in place to avoid undue pressure and influence, be able to regulate their financial affairs both during their relationship and in the unfortunate event of it terminating."

"There is currently a perceived unfairness in the way that divorce law in particular is applied and I have known this put couples off marrying or entering into a civil partnership, particularly those with substantial assets or if they have been married or in a civil partnership previously."

The review will look at property agreements whether made before or after the parties marry ("pre-nups") or enter into a civil partnership, and those made when the parties separate.