‘Pre-Nuptial Agreements will undermine Marriage Vows says Bishop of Shrewsbury’ was the headline recently. The good Bishop went on to say ‘we are asking them to prepare their divorce settlement before they have even married.’
Then Baroness Deech, a leading family lawyer, told Radio 4 that a Pre-Nup may save career women from greedy men:
‘Lots of young women these days are working, earning well, and would feel it extremely unfair if a young man who they marry and perhaps leaves them is going to take with him a sizeable chunk of what they have worked so hard for.
‘The position of women has changed in the last 40 years and it’s time to recognise that in this country, like virtually every country in the world, two people who are getting married ought to be able, if they want, to make a contract about how their assets are to be divided if they divorce.’
The debate on Pre-Nups is hotting-up as we await the outcome of the Law Commission tasked with considering this issue, and which is to report at the end of the week.
For those that don’t know, until relatively recently Pre-Nups were largely ignored by the British Courts when looking at who should get what share of the matrimonial pot upon divorce. However, this attitude has been changing, and the current thinking is taken from the Supreme Court case of Radmacher v Granatino:
“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
In a very recent case Mr Justice Mostyn, another of our leading lights of family law reform, ranged over the further developments of that principle, including that:
‘there is no absolute black and white rule for full disclosure or independent legal advice. Rather, the question is whether in the individual case there is a material lack of disclosure, information or advice. Each party must have all the information that is material to his or her decision that the agreement should govern the financial consequences of the marriage coming to an end’; and that there is no ‘requirement to have received specific advice as to the operation of English law on any overseas agreement in question’; and, that ‘a marital agreement does not have to deal with all aspects of the parties’ resources in order to be presumptively binding over the assets or resources which it addresses.’
All of this points to an ever- increasing weight being given to Pre-Nups by the Courts, making an actual law confirming that Pre-Nups shall be binding more and more likely one would think. Unfortunately, the Government has said there simply isn’t time to create any more legislation before the next parliament – so on the back burner it goes.
With the Law Commission reporting at the end of the week, all we can be absolutely sure of now is that there is much more public debate on the issue to come. Watch this space…