Recently it has been noticed that more and more people are showing interest in pre nuptial agreements.
One reason for this could be the Law Commission publishing a landmark report, ‘Matrimonial Property, Needs and Agreements’, with the recommendation that there should be a form of legally binding marital agreement in the divorce system. These types of agreements are already enforceable in many other countries and jurisdictions around the world.
‘Qualifying nuptial agreements’, as they would be know, would enable married couples and civil partners to make a binding agreement about how their property or finances should be shared if their relationship breaks down. The agreements would be enforceable as contracts but would apply only after both partner's financial needs, and any financial responsibilities towards children, have been met. And they would be binding only if, at the time of signing, both parties had disclosed material information about their financial situation and both received legal advice.
This has been seen by many as inevitable since the landmark case of Radmacher v Granatino which established that pre nuptial agreements should be given effect to if they are fair and freely entered into by both parties who have exchanged full and frank financial disclosure and gone into the agreement with their ‘eyes open’.
Although the benefits of a pre nuptial agreement include taking away the harshness of having to claim ‘what is yours’ amidst a breakdown of marriage, some have taken the view that it encourages couples to contract into planning ahead for a divorce before they are even married, as if a divorce is an expected outcome.
It remains to be seen what appetite the government will have this side of a general election in 2015 to bring forward the Law Commission’s recommendations.