The Law Commission’s consultation paper has been published in which it considers marital property agreements, otherwise known as prenups.
The The Law Commission say that current divorce law is “incomplete and uninformative” as well as “inaccessible and difficult to discover”. The paper calls for reform of the current laws that control financial settlements after divorce, including recognising prenups legally and bringing in safeguards to ensure any agreements made before marriage are fair on both parties.
Currently, prenuptial agreements are not legally binding in the UK, however, the landmark case Radmacher v Granatino set a precedent that pre-marital agreements can be taken into account by a judge if they satisfy a number of criteria, one being that the agreement made before marriage should not be unfair on either party.
There have been mixed opinions from legal professionals to the proposals set out in the Law Commissions paper. Ian Kennerley of Newcastle firm Silk Family Law told the Guardian that he agreed that prenups should be given statutory support:
“They [prenups] will reduce the level of litigation and provide certainty,” he said, “But there needs to be the fallback consideration of fairness and they need to be reviewed and varied so that they continue to be fair after the birth of every child and after any significant change. What might be fair for a young couple at 25, may not be fair 25 years later.”
Some lawyers have warned that the proposals would need to be supported by clarity and definition of key terms such as what “need” is in terms of divorce settlements. John Burrell of Davenport Lyons explained to the Guardian:
“If the Law Commission produces a change which does state clearly what is to be regarded as ‘needs’ then that change in itself will give much greater clarity for the parties both in negotiating a prenup and, on an otherwise unregulated divorce, to know what they can expect.”
Prenups can be used to protect assets that you bring to a marriage and can be taken into account by a divorce judge should your marriage break down. Prenups are specialised documents and need to be prepared by an experienced lawyer. Call us today to discuss how we could help you protect your assets.