Following new guidance released by the Law Commission, a marked rise in interest in pre-nuptial agreements has been noted, allowing couples to determine how they would divide up their assets if they were to separate in the future.
The Commission – the Government’s adviser on legal reform – recently released a landmark report which recommended an overhaul of the divorce system, including the roll out of a type of marital agreement.
The ‘qualifying nuptial agreements’ would be similar to pre-nuptial (or post-nuptial) agreements and would see couples either pre or post-marriage setting out how they would divide up their assets if they were to divorce in the future, or ensuring certain assets sat outside the agreements. If the agreements met legal conditions, they would be legally binding and not subject to scrutiny from the courts over fairness.
Many industry experts are in support of the plans, saying that they help to remove some of the tension from a marital breakdown, which is a fraught time without these added woes. However, others warn that the plans could harm relationships as, in some cases, they are encouraging couples to plan for divorce prior to their marriage taking place.
The plans point towards the suggestion that the agreements could soon be made legally binding across England and Wales, a move which has been in the pipeline since the 2010 Supreme Court case of the German heiress Katrin Radmacher. Judges can now take such agreements into account if they believe the agreement is fair, although currently financial awards are still made as a result of a court order.
These pre and post-nuptial agreements are already recognised as enforceable in a court of law in Scotland as well as in several other countries.