Law Commission report sparks a surge in interest in pre-nuptial agreements

A landmark report by the Law Commission, the Government’s adviser on legal reform, appears to have sparked a huge rise in interest in pre-nuptial agreements, according to an article on the Telegraph news website.

The Telegraph’s article says that one law firm has reported a 50 per cent increase in the number of enquiries that they have received about pre-nups – agreements which allow couples to decide in advance of their marriage how their assets should be split up if they divorce.

The Law Commission’s report has recommended the introduction of a form of pre-marital agreement, to be introduced as part of wider reforms to the divorce system – something which has been called for by Resolution – see last week’s blog post for further information.

Family lawyers and groups such as Resolution say that changes to divorce law could help to take the acrimony out of marriage breakdown. However other groups such as church leaders, warn that relationships could be harmed if couples are encouraged to plan for divorce.

Pre-marital agreements are now in place and legally enforceable in Scotland as well as several overseas countries. Following the landmark supreme court case of the German heiress Katrin Radmacher in 2010, judges in England and Wales can take pre-nuptial agreements into account but only if they are satisfied that the agreement is fair. However, financial settlements must still be made by court order.

According to the Telegraph’s article, the Law Commission has recommended a new form of contract which would be similar to pre-nups or post-nups but would be known as ‘qualifying nuptial agreements’. These would mean that couples could, either before or during their marriage, specify how their property should be divided in the event of divorce. Perhaps most importantly, these agreements would, as long as legal conditions had been met, be binding and not open to judicial scrutiny over whether they were fair or not.

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