Pre-Nups Should Be Legally Binding, Says Report

By Afua Hirsch, Social Affairs Editor

Pre-nuptial agreements should become legally binding in court, according to an influential report.

The body which reviews law in England and Wales wants them to have contractual force, and is calling on parliament to change the law.

"Pre and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect," said Professor Elizabeth Cooke, Law Commissioner for property, family and trust law.

"(Our recommendations) would give couples autonomy and control, and make the financial outcome of separation more predictable.

"We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state."

Pre-nups have traditionally been treated with suspicion by English courts, but have gradually become more and more influential after a series of rulings recognising their terms.

In 2010 the Supreme Court upheld the terms of German heiress Katrin Radmacher's pre-nup in a landmark ruling that lawyers say has made the agreements more popular.

Divorce lawyer Vanessa Lloyd Platt said: "We have seen an increase in pre-nups since Radmacher.

"And what we have especially noticed is an increase in demand for pre-nups from women. They have a property that they have acquired before a marriage, which they want to protect.

"Pre-nups are legal in the US, Australia, and many European countries. But some say that aspects of British culture are unique and make their use more difficult.

"For many English women, money is a dirty word, whereas in America for example, women are comfortable discussing money openly. 90% of the women I see don't have a clue what their husbands are earning and what assets they have.

"I worry that if pre-nups are enforced by the courts, women will be put in a position where they won't want to spoil the wedding by suddenly saying its off because the terms of the pre-nup are unreasonable."

Yet divorce in England and Wales is on the rise. Some 42% of marriages are now expected to end in divorce.

In 2012 the number of couples divorcing increased to 118,140, up from 117,558 the previous year.

The prevalence of divorce has led to more calls for pre-nups to be recognised, provided they are not unfair.

The Law Commission said its recommendations did include the necessary safeguards, and that pre-nups would only be enforced if both parties were provided for.

Prof Cooke said: "We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other's financial needs, or for their children."

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