Pre-nups ‘should be legally binding’ in divorce settlements, says Law Commission

The body - which advises on law reform across England and Wales – is urging parliament to change the law so that the agreements have contractual force and are binding in divorce settlements, after the needs of the couple and any children have been factored in.

Professor Elizabeth Cooke, Law Commissioner for property, family and trust law, told Sky News: “Pre and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect.

“(Our recommendations) would give couples autonomy and control, and make the financial outcome of separation more predictable. We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state,” Professor Cooke added.

While British courts already recognise pre-nups as enforceable – something which was firmed up following the 2010 case relating to German heir Katrin Radmacher and her £106 million fortune – and they have become ever more influential, they are not followed in every case.

One of the requirements from the Law Commission is that, at the time of signing the pre-nup, both parties are obliged to provide material information regarding their financial situation, following legal advice.

The Commission also proposes that such agreements would only be enforced “after both partner’s financial needs, and any financial responsibilities towards children, have been met”.

“It will remain open to spouses to make agreements about financial needs, but such terms will not be contractually enforceable and will be subject to the courts’ scrutiny for fairness as they are at present. A qualifying nuptial agreement will not remove the parties’ ability to apply for, and the courts’ jurisdiction to make, financial orders to meet their financial needs,” the Commission’s report read.