As reported by The Times, The Law Commission is due to publish a report at the end of February dealing with prenuptial agreements (the Matrimonial Property, Needs and Agreements report). The Law Commission started work on the subject in 2011 and the results are rumoured to include a draft Bill recommending that prenuptial agreements are legally binding.
Currently in this country, even though it is advisable to make a prenuptial agreement (better to have one than not have one), it is up to the Judge to decide whether an agreement is recognised or not. Certainly they are considered together with the financial positions of both parties and their respective needs, but there is no guarantee that a prenuptial agreement will be recognised in full and its terms adhered to. A case in 2010 suggested that a prenuptial agreement should be given weight as long as it is entered into freely by both parties, unless it would be unfair to follow the terms of agreement.
Watch this space for news of the proposals made by The Law Commission.
The High Court has upheld the terms of a prenuptial agreement and the Judge (Mostyn J) provided a very useful summary of the current law.
In the case in question, the parties were married very recently (June 2012) and had entered into a prenuptial agreement a month before the wedding. Prior to signing the agreement, both the husband and the wife had received legal advice and spent a long time negotiating the terms of the agreement.
At the time of the hearing, they had a child and another on the way. The wife was seeking different terms to those agreed.
The Judge decided that the agreement they had reached in May 2012 should be upheld and the terms within the agreement should be applied.
This case does not mean that all prenuptial agreements will be upheld without question, but it is encouraging to know that a carefully worded agreement entered into with the benefit of sound legal advice has a chance of being successful. The Judge did make it clear that couples should be free to make an agreement, but that agreement must not prejudice the reasonable requirements of a child or children.
Encouraging news which strengthens the argument that it is better to at least consider making a prenuptial agreement and seek legal advice, than not to think about it at all!