Pre-Nuptial Agreements – changes on the way?

With each year that passes, more and more people enquire about pre-nuptial agreements and eventually decide to put an agreement in place before they marry. On divorce or dissolution of civil partnerships, the status of such agreements has been given greater recognition in recent times but they remain in simple terms, non-binding with the court retaining power to make orders which are wholly different to the contents of the agreement.

In many countries such agreements are common, upheld by the court process and will therefore be enforceable. Currently this is not automatically the case in the UK.

The Law Commission has published a report making recommendations to Parliament for changes to the law relating to pre-nuptial agreements.

It is recommended that legislation is introduced to make such agreements binding provided they meet the criteria for a "Qualifying Nuptial Agreement". On divorce/dissolution, the agreement would therefore be followed and the court could not make orders inconsistent with the agreement unless necessary to meet the needs of one of the parties or a relevant child.

The criteria for a QNA are similar to what we would be expecting to have in place now for any pre-nuptial agreement - financial disclosure, independent legal advice for both parties, made by deed, a valid contract and made at least 28 days before the marriage or civil partnership. The agreement will need to include a statement that the parties understand that the agreement removes the court's discretion to consider their financial claims. Importantly there is no requirement that the agreement is fair.

The Qualifying Nuptial Agreement is therefore one more step on the way to a binding agreement but with the safeguards of certain criteria being met in the first instance and the court retaining its powers to make alternative provision where need requires it.