In October, the House of Commons Library published a briefing paper outlining the current status of pre-nuptial agreements in England and Wales and proposals for reform of related law. The briefing paper considers the Law Commission projects underway to assess reform options and the status of private members’ bills introduced in parliament on the matter.

Paralegal Scarlett Thomson outlines the key points arising from the briefing paper.

Current legal status of pre-nuptial agreements

The briefing paper summarises the current legal status of pre-nuptial agreements in England and Wales and provides a summary of the landmark decision of the Supreme Court in Radmacher v Granatino [2010] UKSC 42.

As the law currently stands, pre-nuptial agreements are not automatically enforceable in England and Wales.

Following the Supreme Court ruling in the case of Radmacher, the courts should give effect to a pre-nuptial agreement freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. In other words, pre-nuptial agreements should be afforded “decisive weight” unless the agreement is unfair. The fairness of upholding a nuptial agreement will, therefore, be considered by the court on a case-by-case basis. The court retains discretion as to how much weight to attribute to a pre-nuptial agreement.

Law Commission projects

In 2014, the Law Commission published a report entitled ‘Matrimonial Property, Needs and Agreements’, which recommended that the government introduce legislation to enable “qualifying nuptial agreements” to be legally binding and enforceable by English and Welsh courts. Under this proposed regime, provided pre-nuptial agreements satisfied various requirements, they would be recognised as “qualifying nuptial agreements” and be upheld as enforceable contracts. They would no longer need to satisfy the court’s discretionary assessment of fairness.

The proposed requirements and safeguards for a pre-nuptial agreement to be recognised as a “qualifying” nuptial agreement include both parties receiving independent legal advice, providing each other with adequate disclosure of their respective assets, entering into the agreement voluntarily and engaging in the minimum “reflection” period of 28 days prior to signing the agreement.

Almost 10 years on from this report and its recommendations, the government has yet to issue its final response to the Law Commission’s 2014 proposals.

The briefing paper also revealed that preliminary work has begun on a new Law Commission project assessing the reform options for the laws governing finances on divorce and the ending of a civil partnership, with a scoping paper due to be published by the Law Commission in September 2024. The review’s purpose is to identify whether the issues covered in the earlier Law Commission project need to be reviewed beyond its 2014 recommendations.

Lord Bellamy, the Parliamentary Under-Secretary of State for Justice, confirmed in April 2023 that the government does not intend to legislate on pre-nuptial agreements while this new review is taking place. Lord Bellamy said this is because “the government favours a holistic rather than a piecemeal approach to any future legislative reform in this area”.

Details of the new Law Commission project can be found here.

Related private members’ bills

Attempts to push legislative reform through parliament have been made in the form of private members’ bills. Such bills have been introduced by Baroness Deech (Crossbench) in multiple parliamentary sessions in recent years and would provide for nuptial agreements to become legally binding.

In advocating for her private members’ bills, Baroness Deech has argued that giving pre-nuptial agreements statutory force “would have the advantages of improved predictability of outcomes, meeting public expectations that they can make their own arrangements and maybe encouraging marriage for those who, with past bad divorce experience, may be reluctant to commit again to a potentially financially ruinous legal situation”.

However, the briefing paper acknowledges that none of the bills introduced have completed their passage through parliament. The most recent bill introduced by Baroness Deech in 2021 did not progress past its first reading in the House of Lords.

What can we take from the briefing paper?

The publication of the Law Commission’s scoping paper, anticipated in September 2024, will be significant and is eagerly awaited by family law practitioners.

You can view the 2023 House of Commons Library Briefing Paper on Pre-nuptial Agreements here.

Partner Richard Hogwood says: “Although there has been a clear lack of progress to date for private members’ bills, and little in the way of a response to the Law Commission’s 2014 recommendations for ‘qualifying nuptial agreements’, this at least demonstrates that the status of pre-nuptial agreements and the possibility of them becoming legally binding remains a live and ongoing issue.

Were they to become binding in England and Wales, in line with the Law Commission’s suggestion, then our law in this respect would finally align us with much of the rest of the world, in particularly most of Europe and the United States.”