If the Daily Mail’s prediction (3rd February) is to be believed, proposals will soon be on the table to make pre-nuptial agreements legally binding.

The paper is predicting that the Law Commission report upon such agreements, not due to be published until 27thFebruary 2014, will propose that they should be made legally binding, subject to certain conditions and exceptions.

The Law Commission is an independent body set up by Parliament to review and recommend reform of the law.

Since October 2009, the Commissioner has been examining the status and enforceability of what it describes as “marital property agreements”.  The Commission is due to publish its report on the 27th February.

Under English Law, the position since the landmark case of Radmacherr Granatino in 2011 is that a court should give effect to a nuptial agreement that is freely entered into by each party with the full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

In considering the issue of whether it is fair to hold the parties to the agreement, the court would be expected to take into account, the following :-

a.      No agreement can be allowed to prejudice the reasonable requirements of any child involved;

b.      Respect should be given to the autonomy of the married couple who have decided that their financial affairs should be regulated;

c.      An agreement would not be upheld if it would leave one party in real financial need.

It is also generally the case that prior to entering into the agreement, there must have been sufficient (but not necessarily full and detailed) disclosure of each parties financial circumstances such as to enable the other to have the “full appreciation” of the implications as set out above.

It certainly appears that since 2011, when it was widely and mistakenly, reported that pre-nuptial agreements had become “binding”,  there has been an increase in the number of people entering into such agreements.

We wait with baited breath for the publication of the report on the 27th February and, more importantly, the Government’s response.

It is not considered likely that whatever the recommendation of the report, that any legislation will be introduced prior to the next election and perhaps, as a consequence, we can all look forward to opening next year’s Valentine’s card without wondering whether any proposal might have a “binding” pre-nup attached.

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