A leading family lawyer at London and Surrey-based firm Mackrell Turner Garrett, says the Law Commission’s recommendation that pre-nuptial agreements should “legally binding in divorce cases” is a welcome decision.
Alison Green, Head of Family Law whose clients have included Premier League footballers and members of royal families, said the decision by the Commission to recommend that so called “pre-nups” should be legally binding in court, only after financial responsibilities to children and each other are met, would take away the current confusion in the system.
She said: “Currently pre-nuptial agreements are not automatically legally binding, but they are recognised as enforceable under British divorce law. However, pre-nups are currently upheld at the discretion of the judge who will consider a number of factors. There is a grey area, and one judge might take a different view from another.
“Hopefully, if the government draws up legislation on the basis of the suggestions, this will clear up any confusion, and give couples a clear framework to draw up pre-nups, on the understanding that that will be legally binding in court.”
Alison said the firm has seen a year-on-year increase in the number of pre-nups they have drawn up on behalf of couples and this is expected to increase further if these recommendations are put into law.
“Pre-nups have become increasingly popular in recent years, particularly between couples looking to protect large financial assets,” she said.
“If the government takes on the recommendations, then we are likely to see this number increase significantly.”
Alison agrees with the recommendation that agreements would only be enforceable “after both party’s financial needs, and any financial responsibilities towards children, have been met”.
She said: “This is a sensible recommendation, and will allow judges to scrutinise agreements for fairness, ensuring that children are not left out in such agreements.”
Another requirement is that at the time of signing both parties must disclose material information about their financial situation and have received legal advice.
“This is important, as it should cut down on the use of dangerous “DIY” agreements, which are drawn up without proper legal advice,” said Alison.
“Drawing up your own DIY pre-nup and getting it wrong could be financially disastrous. In some recent cases for example, individuals have lost up to 60% of their personal wealth as a result of a clumsily self-written Agreement.”
The Law Commission’s proposals will be sent to the Ministry of Justice, who will examine whether it wishes to draw up legislation on the basis of the suggestions.