Pre-nups ‘Should Be Legally Binding in Divorce Cases’

The Law Commission recommends that prenuptial agreements, or ‘pre-nups,’ should be legally binding in divorce settlements, subject to strict qualifications. One recommended requirement is that at the time the agreement is signed, both parties must disclose material information about their respective financial status and have been in receipt of legal advice.

The commission is also calling on the Government to consider using a ‘divorce calculator’ so that separating couples could work out how to divide their assets. It is hoped the agreements could cut legal costs associated with acrimonious divorces.

Although judges will not necessarily follow the terms of a pre-nup when they rule who receives what in a disputed divorce settlement, a Supreme Court ruling in 2010, which allowed the divorce of heiress Katrin Radmacher to be dictated by her pre-nup, means deals now have substantial legal weight.

The report published by the commission on the reform of matrimonial property laws calls for agreements to be only enforceable “after both partners’ financial needs, and any financial responsibilities towards children, have been met.”

Call for authoritative guidance on financial needs to help negotiations

The commission is urging the Family Justice Council to produce “authoritative guidance on financial needs” to allow partners to reach an agreement that recognises their financial responsibilities to one another. It also says the government should support long-term research to investigate whether a viable, non-statutory formula could be produced that would enable couples to have a better idea of the amounts that might need to be paid to meet requirements, noting that other jurisdictions produce guidance which is used by couples to underpin negotiations.

Pre-nups are particularly relevant to wealthier couples, where financial assets significantly outstrip ongoing maintenance requirements such as childcare.

The Law Commission’s proposals have been criticised by the Marriage Foundation, which says that the existence of such legally binding agreements could mean more people opt for divorce in future.

“If you think about divorce you are more likely to do it. The pre-nup is key to set you on that path,” said the foundation’s Harry Benson.

Parents want children to sign pre-nups

The Law Society has said that it has seen an increase in inquiries from parents who want their children to sign pre-nuptial agreements before marrying a partner, amid fears they will lose out on their investments in the event of a break-up. The trend comes as a growing number of parents are being asked by their grown-up children for help with saving for a deposit as soaring house prices mean they need a larger amount to step on the property ladder.

On the occasion of marriage, both husband and wife gain the right to bring a claim against the other’s property, no matter who originally paid for it. This means a court can determine whether each spouse is entitled to half of the value of the home the couple shared.

Lawyers say that pre-nups have become a key part of wedding preparations, as parents of the bride and groom want to safeguard their investment.

The ‘pre-nup house’ that can be split in two if marriage doesn’t work out

Dutch design firm Studio OBA has created what it calls ‘Prenuptial Housing’. Not only does the dwelling split in two – the two units can float away from each other. The design firm’s blueprints describe the structure as consisting of two independent prefabricated structures, which appear to be fused as one, but which are easily divided in two once the couple decides to call time on the relationship.

The design team took inspiration from the canals and floating structures in Amsterdam for their work.

Countries in the EU that have the highest divorce rates, including Portugal (68%), Belgium (71%) and Hungary (67%), are seen as the most promising markets for the homes.

Your next step – talk to IBB Solicitors

If you are considering getting married or entering into a civil partnership but want to try to protect your assets as much as possible in the event of future relationship breakdown, please contact one of our Family Lawyers who will be able to assist you with your enquiries.

Please call us on 03456 381381 or email familylaw@ibblaw.co.uk.