February 7, 2014

Revving up for pre-nups – but will they stall on the legal journey?

Following our blog on DIY pre-marital arrangements, so called ‘pre-nups’ have again hit the headlines with some media reporting that they will be enshrined in law.

However, is it really ‘green for go’ for pre-nups?

I fear that some media commentators have rather jumped the gun as, in my opinion, pre-marital arrangements are a long way from becoming legally binding.

The legal journey for pre-nups and other suggested reforms begins on February 27 when The Law Commission is expected to make recommendations to bring about significant changes to the financial aspects of divorce. These will include the issue of whether pre-nups should be, or can be, legally enforceable.

I applaud the commission’s drive to introduce reforms that may help reduce confrontational and damaging court battles between couples when their marriage breaks down.  However, there it is a very long and winding route between making the transition from report to statute.

The Government may ignore the commission’s recommendations – as they did with proposed reforms to the cohabitation laws.  As readers of our blog will know, we are passionate in our belief that co-habiting partners should have the same inheritance and financial redress rights as married couples.  Yet, the Law Commission’s imminently sensible 2007 proposal was rejected by the Ministry of Justice four years later – and co-habiting couples are still left vulnerable.

As we highlighted in our recent blog, a well-crafted pre-marital arrangement, where both partners have undertaken professional, impartial legal advice, is likely to be given weight by a divorce court.

If the Government does legislate to enforce pre-nups I have no doubt that there will be ‘back door’ clause so that a party who is (allegedly) prejudiced can escape.

Ultimately the Ministry of Justice may decide that it is too complex to make pre-nups legally binding. For example, what happens if a couple’s financial circumstances have changed significantly since the agreement was drawn up, or one of them is due to inherit property or substantial assets?

So, a green light for pre-nups?  My take is that an amber light is more realistic – coupled with a danger of the process being further stalled in the long legislative journey ahead.

Do you think pre-nups should become law?  Please leave your comment below or on Twitter @helpwithdivorce