Binding pre-nuptial agreements became one step closer to becoming law on 27th June 2014 when the House of Lords gave their backing to a draft bill.
The current law is that pre-nuptial (also called pre-marital or pre-civil partnership) agreements are one of the factors a court takes into account when deciding upon a division of the financial assets on divorce or civil partnership dissolution. This “broad brush” approach makes it difficult to predict how any written agreement regulating matrimonial property and finance will be viewed.
In continental Europe, the law allows couples to choose how to regulate how their property and finance will be dealt in the event of marriage breakdown. These are called matrimonial property regimes; effectively they are pre-nuptial agreements. There are various different regimes available. If a couple do not choose a particular regime, the law provides a default regime.
In Spain, for example the default regime is that the all property owned by the respective parties prior to the marriage reverts to them on divorce. Any “gains” made during the marriage are shared equally. This is also known as the marital “acquest”.
The rationale for making pre-nuptial agreements binding is that the law will provide more certainty. Lady Deech who introduced the bill referred to cases in which couples had incurred substantial legal costs on litigation over the status of pre-nuptial agreements. In some case the costs were vastly disproportionate to the value of the assets at issue.
Whilst certainty is to be welcomed, the current broad brush approach allows the English court a level of discretion in order to achieve an appropriate settlement. This discretion would fall by the wayside if pre-nuptial agreements become binding.
For more information see www.familylawweek.co.uk/site.aspx?i=ed130366
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