prenupPre-nuptial Agreements have become more popular since the Law Commission suggested they should become legally binding.

The Telegraph reported last weekend that several law firms had seen an increase in demand for pre-nuptial agreements since the Law Commission released its report. One London firm reported a 50 per cent rise in the number of enquiries they received regarding pre-nuptial agreements.

Currently, pre-nuptial agreements are not legally binding in England and Wales and are subject to judicial scrutiny. However, in February this year the Law Commission released a report which recommended that the government make changes to the law to enable pre-nuptial agreements to become legally binding.

Pre-nuptial agreements are already binding in other jurisdictions including Scotland and the USA. Supporters of the Law Commission’s recommendations say that making pre-nuptial agreements legally binding will increase clarity for couples as well as reducing the time and money spent on lengthy legal arguments.

Those against the changes argue that helping couples to plan for their divorce before they are even married undermines marriage and could harm relationships.

What did the Law Commission suggest?

The Law Commission recommended a new type of contract similar to pre-nups or post-nups known as “qualifying nuptial agreements”. It would involve couples specifying how they would divide their property if they divorced. These agreements could be made before or after marriage.

In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met. As long as these legal conditions are met, the agreement would be binding and would not subject to judicial scrutiny over fairness:

  • The agreement must not have been entered into within the 28 days immediately before the wedding
  • Both parties must have made full disclosure of their means and have taken independent legal advice.
  • Qualifying agreements could not be used to contract out of “financial needs”. Accordingly, either party could still apply to the court for a financial order to meet their financial needs.

The government are still considering the suggestions and are due to publish an interim response in August 2014.

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