Law Commission launches consultation on pre-nuptial agreements

The Law Commission, the Government’s legal reform adviser, has today published a consultation on the future of pre-nuptial agreements, seeking views on whether couples should be able to make binding agreements governing financial arrangements if their relationships end.

Pre-nuptial and post-nuptial agreements have rarely been out of the news since the Supreme Court ruling in Radmacher v Granatino [2010] UKSC 42. In this case, a German heiress and her French husband had entered into a pre-nuptial agreement to the effect that neither would have a claim on the other’s wealth in the event of divorce.

The Supreme Court ruled that the Court of Appeal had been right to conclude that it was fair to hold Mr Granatino to the terms of his pre-nuptial agreement, meaning that he received only £1m instead of £5m in the divorce settlement.

The ruling was significant in that it represented a major step towards pre-nuptial agreements becoming legally enforceable under English law, which would bring England and Wales in line with many other EU countries. Professor Elizabeth Cooke, the Commissioner leading the project, said that pre-nuptial agreements are a ‘topical issue’ and need to be ‘handled with care’.

The general consensus amongst family practitioners is that the Law Commission will propose legislative reform to make pre-nuptial (and post-nuptial) agreements legally binding for the first time.

However, there is some way to go. The full consultation paper is available on the Law Commission website: http://www.lawcom.gov.uk/marital_property.htm. The consultation closes on 11 April 2011.

Once the consultation has concluded, the Law Commission is not expected to publish its recommendations until sometime in 2012.

We will carefully monitor developments and update the website accordingly. In the meantime, if you would like some legal advice on pre-nuptial and/or post-nuptial agreements, please contact Christian Abletshauser at christian@meadowsfraser.com or on 01932 852 057.

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