Prenuptial agreements – the way forward

07 Mar

Following on from my blog post on the 4th February 2014 describing the imminent publication of the Law Commission report on pre nuptial agreements the report has now arrived. The document which was originally commissioned in 2009 and superseded by the decision in Radmacher v Granitino 2010, recommends that there is legislation to address the issue of whether parties to a divorce or dissolution of a civil partnership can be bound by a prenuptial agreement.

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Prenuptial Agreements

Following on from my blog post on the 4th February 2014 describing the imminent publication of the Law Commission report on pre nuptial agreements the report has now arrived. The document which was originally commissioned in 2009 and superseded by the decision in Radmacher v Granitino 2010, recommends that there is legislation to address the issue of whether parties to a divorce or dissolution of a civil partnership can be bound by a prenuptial agreement.

Prenuptial agreements offer certainty and peace of mind to those who enter into a marriage or civil partnership and wish to safeguard their positions in the event of the relationship breaking down. For example the agreement could provide for family heirlooms, certain gifts or even businesses to be outside the list of assets that the Court will consider if there is a financial remedy application between the parties. Agreements such as these are becoming increasingly common and the Law Commission recognises this and endorses their use.

The regime that the Commission has recommended provides for there to be legislation to make prenuptial agreements enforceable. The agreements will be called “Qualifying Prenuptial Agreements” (QPA). There are certain qualifying factors to the enforcement of QPA and these will include –
•    That the QPA is contractually valid – there is no element of mistake or misrepresentation
•    That the QPA  is done by deed (for the lawyers – there is therefore no concern about a lack of “consideration” to the contract)
•    That the QPA is signed no later than 28 days before the wedding or civil partnership ceremony
•    That there is full financial disclosure by the parties to the agreement before the QPA  is signed
•    Lastly that both parties have independent legal advice and that there should never be a waiver to this requirement

If all these elements are present then the Law Commission recommends that the QPA should be enforceable.

There is only one caveat - the agreement cannot prevent any party from applying to the Court for a financial remedy; but that subject to the issue of the “fairness” of the agreement being scrutinised the agreement should be enforceable.

Legislation cannot be expected before the autumn.

Dylan Morgan

For more information on Family Law, click here.