A little while back we took a look at the befuddled state of the law when it comes to pre-nuptial agreements. We observed a general move towards their being generally accepted as binding by the courts; yet at the same time, it was also clear from our research that lawyers in the family law arena had the sense that they could never quite predict how a judge would rule on any given day. Such uncertainty before the law isn’t desirable, especially now that the removal of legal aid in so many cases means there is even greater risk to the party that challenges any maintenance agreement.
At the time of writing the previous post, we noted that the Law Commission was currently reviewing the law in this area with a view to making recommendations to Parliament. They have now announced that they will publish their full report on the 27th February this year. It is worth quoting at length from the Law Commission website announcement as to why reform is needed; they state,
“One of the key factors that the court must take into account when making a decision is the parties’ financial needs. The meaning of “needs” in this context has generated uncertainty and there is confusion about the extent to which one spouse should be required to meet the other’s needs after their formal relationship has come to an end. Another area of particular uncertainty is how the courts treat property that one party brought into the relationship or acquired by gift or inheritance during it.”
Thus they give a clear indication that in order to end this uncertainty, statutory underpinning of the validity of pre-nuptial agreements is the way forward. Case law is also much more likely to accept pre-nuptial agreements than at any point previously. Only six short years ago they were generally considered unenforceable: now, a reliable body of case law is bringing pre-nups to life. In a case decided late last year BN v MA  Mr Justice Mostyn stated,
“[I]t must be obvious that the principle object of the exercise in this case (as indeed in every case where a nuptial agreement is signed) is to avoid subsequent expensive and stressful litigation; and it is for this reason, as will be seen, that the law adopts a strict policy of requiring the demonstration of something unfair before it will open the Pandora’s Box of litigation where there has been an agreement of this nature”.
The legal profession in general would consider this to be progress. There are those, however, who are concerned for the impact such agreements have on the institution of marriage as a whole. Lady Hale, Deputy President of the Supreme Court (as quoted in this Daily Mail article) has warned we should be exercising caution, arguing that “Marriage still counts for something in the law of this country and long may it continue to do so”. Notwithstanding such clearly expressed reservations, many will be pleased that the Law Commission’s consultation, which began in 2011, is coming to an end. But then another hurdle remains in the path of such a law making it to the statute books. Justice Secretary Lord Grayling will need to time to digest the proposals, and there is unlikely to be time in the parliamentary timetable for the legislative proposals to be debated before the next general election. As a result, it rather looks as if, despite the favourable wind, uncertainty will remain in the realm of pre-nuptial agreements for just a little while longer.