The Law Commission’s consultation on pre/post-nups

The Law Commission has recently published a consultation paper on pre/post-nups discussing whether these should be binding for those couples who wish to make prior agreements regarding their finances should their relationship end.

There are several different options regarding pre/post-nups which are currently being considered.  However, what is clear from the outset is that the Commission will be recommending that agreements would not be enforceable if they a) did not provide for the needs of any children of the family, or b) left one party reliant on state benefits.  The objections to agreements which fall foul of these conditions are obvious.

The consultation paper discusses whether binding agreements should be allowed to govern all financial issues between a separating couple, or should relate to specific property only.  If the agreements related only to certain types of property, it is argued that this may prevent unfairness as the court would retain the ability to govern the overall finances of a divorcing couple.

The Commission provisionally suggests that three types of property could be subject to binding agreements if this ‘narrow model’ was to be introduced:

1. property acquired before the marriage/civil partnership;
2. inherited property (whether inherited before or during the marriage/civil partnership);
3. property given to either party (either before or during the marriage/civil partnership).

This ‘narrow model’ for binding agreements would mean that the rest of the family wealth would still be divided in accordance with the current law.  However, there are difficulties with this approach.  Many people entering into pre/post-nups will wish to protect their future wealth – this would not be possible under a limited model unless such wealth was inherited or gifted to them. 

This ‘narrow model’ may not therefore, be sufficient for those who wish to enter into these agreements so as to provide certainty in the event of relationship breakdown.  Although certain assets could be protected, those entering into agreements would not be able to agree every aspect of what should happen to their finances on divorce/dissolution of civil-partnership. 

The consultation period will end in April.