The Law Commission has published a Consultation Paper inviting comments on whether pre-nups should become binding, and if so, in what circumstances.

This follows the land mark decision of the Supreme Court in October 2010 in Radmacher v Granatino in which the court held that there was no reason why the husband should not, broadly, be held to the pre-marital agreementhe and his wife had entered into before their marriage.

The Law Commission has not made any specific recommendations and their consultation period is open until the beginning of April 2011. One idea they have floated for consideration is for pre-marital agreements to become binding, subject to sensible contractual safeguards (such as each party having had independent advice and having disclosed their material financial circumstances to each other) if the agreement only seeks to protect assets either inherited or gifted to one of the couple or acquired by them before the marriage.

While this remains only one of the options under consideration, making pre-nups binding in these circumstance would be attractive to farming families who have inherited land and business and wish to gift it to the next generation but want to safeguard the assets from disruption and possible division in the event of a divorce of one of the members of the family.