Proposals for change of law relating
to pre-marital agreements

On 11th January the Law Commission for England and Wales published a consultation paper asking for the views of the public and the legal profession on reforming the law regarding pre marital agreements, agreements regarding financial matters reached during marriage and also those reached after separation but before divorce.  The paper summarises the current law and the pro’s and con’s for reform.

The current position is that the courts can take into account pre nups and enforce them but a couple can not prevent the court from deciding on the financial settlement between them should they divorce.  The court will look at a number of factors on a case by case basis including the procedures which were undertaken to enter into the agreement, whether the terms are fair (both to the parties and any children of the family) and if there has been a big change in circumstances since the agreement was made. 

Broadly speaking the advantages to law reform (to make the agreements binding) are that it would allow couples autonomy/certainty and avoid costly litigation to resolve the terms of a financial settlement on divorce.  The disadvantages are that the agreement could be unfair and prejudice the financially weaker party and/or children.  Also, if the agreement is relied upon many years after it was made it could be that events have taken a different turn which was not foreseen by the parties when entering into the agreement.

The Law Commission has asked for responses to the consultation paper from members of the public, the legal profession by 11th April 2011.  They should after that date publish a report with recommendations for reform which will then need to be considered by parliament.  We could therefore be some time off definitive new legislation in this area.  It is important if you are contemplating marriage to see a specialist solicitor as the current law requires that correct procedures are followed taking into account all your circumstances.  

At Flint Bishop we have a team of highly experienced family law solicitors. 

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Carl Weston
Head of marketing
carl.weston@flintbishop.co.uk
DD: + 44 (0)1332 226 163