Law Commission recommends pre-nuptial legislation

In a report published in February, the Law Commission suggested that “qualifying nuptial agreements” should become enforceable contracts.

Pre-nuptial, post-nuptial and separation agreements, which the Commission calls “marital property agreements”, are not currently enforceable but the courts can take them into account when deciding what financial orders to make and in recent years have been more willing to do so.

The report calls for legislation to be put in place to introduce “qualifying nuptial agreements”. The Commission said: “These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution.

“In order for an agreement to be a ‘qualifying’ nuptial agreement, certain procedural safeguards would have to be met. Qualifying agreements could not, however, be used by the parties to contract out of meeting the financial needs of each other and of any children.”

The Commission said that in making its recommendation, it had “particular sympathy with those who wish to ensure that inherited or gifted property, or property generated before the relationship began, will be excluded from the sharing exercise provided that the other party’s needs are met and children are adequately provided for.”

Requirements for an agreement to be regarded as qualifying include both parties receiving legal advice when it is made, the agreement not being made within the 28 days immediately before the wedding or civil partnership ceremony and that both parties share information about their financial situations when they make the agreement.

At Royds, our family law experts are fully supported by experienced secretarial and paralegal staff who work together to provide you with the best service. We can advise on many aspects surrounding family law in line with the latest legislation, including pre-nuptial agreements.

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