A ‘prenup’ law which permits a couple to determine the terms of their divorce before they are married is set to be proposed to UK ministers later this month. These legal arrangements are frequently used in the US. However, some UK critics ardently state they undermine the sanctity of marriage.
After over four years of deliberation, the UK Law Commission has drawn up a series of legislation referred to as the ‘Matrimonial Property, Needs and Agreements’ proposals. These proposals outline potential legislation which will ‘consider the treatment of pre-nuptial, post-nuptial and separation agreements’. They will be presented to Justice Secretary Chris Grayling together with detailed recommendations for legislation to go before Parliament.
These proposals comprise of a series of new rules concerning how one marriage partner should meet the genuine financial needs of the other marriage partner in the event of a divorce. This legislation is also expected to combat contentious financial issues within marriage. For example; measures will be implemented to protect a bride or groom who brought their own assets into a marriage so as to ensure they do lose these assets in the event of a divorce.
However, it is very unlikely any of these laws will be altered before next year’s general election. A spokesman for the Ministry of Justice has stated the Government will only consider the recommendations once they have been published.
The present situation
Currently agreements exist where couples can draw up terms of a prenup for as little as £25. However, it often costs at least £750 to have a prenup sealed with professional legal advice, if the couple in question possess property and pension assets. This figure increases even further if the couple possess a greater deal of wealth.
Traditionally, UK judges have overlooked prenup agreements, preferring to divide a couple’s financial assets based on the personal merits of each case. Yet in recent years these conventional practices have begun to change. Memorably, in 2010, Supreme Court judges ruled in favour of German heiress Katrin Radmacher, determining that she should be allowed to retain her £100 million fortune after her divorce in adherence with the terms outlined in her prenup.
However, despite cases such as Radmacher’s, there remain several judges who are opposed to the principle of prenups. Lady Hale, now Deputy President of the Supreme Court, has publicly stated her belief that prenups undermine marriage;
‘Marriage still counts for something in the law of this country and long may it continue to do so’.
Only time will tell whether these proposals proceed to become definitive legislation.