Couples are have been told by the Law Commission that pre-nuptial agreements (prenups) should be legally binding in UK divorce settlements – as long as the needs of any children and the couple themselves have been considered. The Commission says that new guidelines should be drawn up to offer couples a more coherent idea on how their needs would be looked at in the event of a divorce.
The report, entitled ‘Matrimonial property, needs and agreements’ does not propose a full overhaul of English marital law but does offer ideas on gradual reform to cope with cultural shifts. The Commission says that the term ‘financial needs’ should be clarified by the Family Justice Council in order to promote consistency and best practice. The report from the Commission also says this will help individuals without proper legal representation to get a better understanding of their responsibilities as well as making it easier for each individual to achieve a state of financial independence.
FORMULAS TO BE INTRODUCED?
The Commission also proposes the introduction of formulas that will enable couples to calculate their financial liability effectively. This is already the case in Canada. The report says that this would “give a range of outcomes within which the separating couple might negotiate”. It’s argued that regional variations between different courts have led to notable inconsistency in divorce proceedings, something which the new guidelines would address. This in turn would make it easier for judges to come to decisions.
The formula proposal has been backed by academics and various law professionals. However, some experts have said that the approach points towards divorce being taken out of the current court system altogether, with increases in court fees and withdrawal of legal aid in recent legal news also having hinted at this.
Under the proposed new systems, prenups would only be legally-binding if they met a series of special conditions, including that the financial needs of both parents and any responsibilities towards children had been met. Professor Elizabeth Cooke from the Law Commission said that married couples and civil partners should be able to decide upon their own finance agreements as long as neither party was failing to cater for their mutual needs or those of their children. Cooke said that they should not be used to force hardship on either party.
UPDATES TO BE MADE
In the current system, courts can enforce prenups as long as they are happy that both halves a couple have entered into them willingly. However, there is still no guarantee that they will be upheld even if this is the case, making life difficult for lawyers attempting to offer advice. With the agreements becoming more and more common, it’s said that significant changes must be made to adapt to them.
The new guidelines would allow pre-nups to be binding as long as independent advice had been given to both parties and that the agreements had been signed 28 days or more prior to the wedding and that full disclosure has taken place. These changes would cause the Matrimonial Causes Act 1973 and Civil Partnership Act 2004 to be amended but can only be made if the government agrees to back them.