This week saw the Law Commission published its recommendations
on nuptial agreements. The report recommended legislation making, what would be
called “qualifying nuptial agreements”. These could be made before or after marriage
or civil partnership and be enforceable much like a contract. The idea is to give more power to couples to decide in advance of a future
divorce how their property will or will not be shared, potentially without
having the terms of their agreement scrutinised by the court.
Qualifying nuptial agreements would
need to be entered into fairly with each party to the marriage disclosing their
financial circumstances to the other and receiving their own legal advice.
However, the most important safeguard
would be that qualifying nuptial agreements will not be able to be used by one
party to force the other to accept less money than they need for themselves and
any children of the family. So an agreement
which leaves one spouse without reasonable income or housing could be rejected
by the court.
Alex Davies, partner and head of
the family law team at Cripps Harries Hall welcomes the new proposals. He says
“If approved by parliament, the Law Commission’s proposals will change the law
radically by bringing much greater certainty for many couples getting married.
We have seen a huge rise in enquiries for nuptial agreements in recent years as
those entering marriage or civil partnerships understandably wish to protect
their wealth in case the worst happens and their marriage breaks down.”