Could UK pre-nups become legally binding?
A new report by the Law Commission has proposed that pre-nuptial agreements – which lay out some of the terms of a divorce before a couple have tied the knot – should become legally binding in the UK.
It is also pushing for more clarification surrounding 'financial needs'. Currently, courts have a large amount of discretion when redistributing property and assets on divorce and one of the key factors the judge will need to consider is the financial needs of each half of the splitting couple.
However there is a great deal of uncertainty about what constitutes 'needs' and the extent to which one spouse should support the other after the divorce.
The report has broadly been welcomed by Resolution, an organisation that represents family lawyers. It has been campaigning for pre-nups to become legally binding for a number of years.
As the number of second marriages rise, more couples are entering wedlock with money, property and children and are seeking out pre-nuptial agreements, yet their exact legal position remains unclear.
Jo Edwards, vice chair at Resolution said: "This latest development seeks to enshrine the status of pre-nups in legislation, which we welcome, and should give people confidence that marital agreements will be upheld. This should also help reduce the burden on the courts.
"We don't expect this measure to lead to every engaged couple in the country seeking a pre-nup, but for those couples who want to have one in place, it will make their legal situation much clearer and reduce uncertainty upon separation."
Graham Kilkelly, financial planner at Sanlam, agrees. He said the proposals reflected the needs of modern marriages. "We wrongly assume that a pre-nuptial agreement is about protecting large sums of money, but in some cases it can be about protecting a partner from the burden of debt.
"These agreements are also more likely to occur in more complicated second and third marriages, particularly when a situation involves children or previously-owned property and there is a real need to 'bare it all' with the facts."
He added: "To me they simply show that a couple have put thought and clarity into what could be a cloudy situation."
The Law Commission stressed that legally binding pre-nups – which would be known as "qualifying nuptial agreements" would need procedural safeguards to ensure that they do not allow one spouse to opt out of meeting the 'financial needs' of their former spouse or children.
"Individuals' financial needs – in particular those of any children – are still the overriding consideration, and couples will not be able to make binding agreements which allow them to avoid future consideration of financial needs," explained Edwards.
Resolution also said that increased guidance on financial needs would give splitting couples more certainty around the monetary outcome of the divorce.
Edwards added: "Splitting up can be one of the most traumatic events anyone can go through in their lives. Resolution welcomes any measure that provides greater clarity and helps people have realistic expectations of what their finances might look like after separation, as well as greater confidence in any arrangements they make.
However Resolution did suggest the further reforms are required. Edwards added: "The last major reform to divorce law was in 1973, and we believe more changes are needed to make the law relevant to modern day. For example, Resolution wants to see the removal of the need to assign blame if a marriage breaks down, which can often ramp up the conflict and cause unnecessary emotional distress.