Prenups may be enshrined in British law

Mon 12 Jul 2010

Prenuptial agreements could soon be legally binding in British divorce courts under new proposals.

According to the Law Commission, many people are being put off getting married because they are worried about how much a divorce could cost them.

As a result, the organisation is considering changing the rules to make prenups legally binding, so each partner can have greater financial certainty in the event of a separation.

Professor Elizabeth Cooke, a family law specialist at the Law Commission, said if the current system is deterring people from getting married, that "isn't good for public policy".

She acknowledged that while nothing could take away the pain of a divorce, enabling prenups to be legally binding would "give greater predictability" to each party.

This follows a number of multi-million pound divorce cases in Britain in recent years, with high-worth celebrities such as Sir Paul McCartney and John Cleese having to pay large sums of money to their estranged wives.

Jacqueline Major, a solicitor at Winckworth Sherwood, commented: "Often in divorce cases dealing with the financial side can be bitter, long drawn out and extremely costly.

"This is partly because we have a discretionary system, rather than fixed entitlements, so there can be much dispute over what each party is entitled to.

"A well drawn up prenuptial agreement can give greater predictability as to how finances will be dealt with on divorce, as the parties can negotiate terms up front. Prenups are becoming increasingly popular, but at present are not binding, only taken into account by the courts.

"The Law Commission will propose a series of options for legally binding pre- and post-marriage contracts in a detailed consultation which is expected to be published within the next two weeks.

"Most family solicitors are in favour of prenups because we believe that subsequent divorces are more easily settled without the need for costly and protracted court cases.

"It should also be the case that adults should be able to contract with each other as to what would happen should the marriage fail. Expert legal advice from a solicitor with experience in drafting prenups should always be sought."