News

The Course of True Love...

 

Love them or loathe them, pre-nuptial agreements and post-nuptial agreements are here to stay. Last year the Courts decided in a long awaited judgement that the terms of a pre-nuptial agreement freely entered into by each party and with full appreciation of their implications should be upheld unless it would be unfair to do so. In the wider context it now seems that the onus will be on the party seeking to challenge the application of the terms of a pre-nuptial agreementwithin divorce proceedings to prove why they should not be held to it. For example, if upholding an agreement might result in one of the parties being able to meet their basic needs then the Court is not likely to put it into effect.

 

But watch this space! The Law Commission has just revealed details of a consultation process that could pave the way for the legislation of pre-nuptial agreements in English law,  putting them on a statutory footing.

 

At the moment, the majority view is that for very many divorcing couples the debate about pre-nuptial agreements is a sterile one, because their limited assets and income will be divided purely on the basis of their and their children's competing needs for housing, and the need to make ends meet.  Whether legislation about this will make the Courts' discretion more difficult to exercise in order to protect the vulnerable remains to be seen.

 

                                                                               May 2011