The Law Commission’s Review of Prenuptial Agreements

Prenuptial AgreementsIt has been interesting to see how a certain area of family law has been pushed to the forefront of our attention lately: namely, the recognition of prenuptial agreements between married couples and civil partners in our legal system. Or perhaps, in the case of English law, we should be saying that the agreements are not actually recognised, at least automatically.

The recognition of prenuptial agreements as a legally binding contract between a couple has been very uncertain over previous years. Basically, it seems that for the most part, there was no real point in conceiving such an agreement in the first instance, as there was definitely no guarantee that it would be recognised in the unfortunate event of having to be relied upon, when the said couple were forced to pursue a divorce.

The current law provides that ‘ancillary relief claims’ may be made when a marriage or civil partnership is ended (s.25 Matrimonial Proceedings Act 1973 & similar authority for civil partnerships under the Civil Partnership Act 2004). But this law gives the courts huge amounts of power to decide on each individual case.

As the law stood, especially before the case of Radmacher v. Granatino, the legality of a prenuptial agreement would be decided upon on a case-by-case basis. This left this area of law very uncertain and would likely have dissuaded many couples from pursuing such an agreement. However, following a decision made by the Supreme Court in the case mentioned above, the law currently stands that, providing certain formalities have been satisfied, a prenuptial agreement ‘ought’ to be legally binding in English law.

Although the Radmacher case has clarified the law surrounding prenuptial agreements to a small extent, it is still very unclear and there is far too much room for judges to move this law forward in all manner of directions. This is no doubt one of the most fundamental reasons why the Law Commission decided that a review was necessary in this area of law and Dr Emma Hitchings of the University of Bristol was commissioned to undertake the relevant research.

If you conduct some in-depth research into this area of law, you may well tend to change your mind somewhat as to why the law has remained the same for so long. Beforehand, admittedly, I personally felt that English law was way behind the times in insisting that there was no contemporary evolution in how prenuptial agreements should be recognised through our legal system. But then, my research revealed that if prenuptial agreements were to become more automatically binding, it would likely be to the detriment of the less well-off members of society. In other words, prenuptial agreements may be considered elitist law that is there to protect the wealthiest members of society.

Dr Hitchings’ summary did insist on investigating this area of law more meticulously, however, and the impact on vulnerable spouses and children, and the fact that circumstances often change when prenuptial agreements are prepared many years in advance, were all taken into the equation. Specifically, s.25 of the Matrimonial Proceedings Act states that a court has a duty to protect the interests of any child under the age of 18 and to ‘have a regard to all of the circumstances of the case’. With such a statute in place already, some may well argue that the law goes far enough.

Dr Hitchings also raised the point that as the law currently stands and because it is so uncertain, expensive litigation costs can arise when any person looks to assert the provisions of a prenuptial agreement. If the law were more certain in this regard, this would likely negate the need to spend so much on legal costs

So, as you can see, if you just scratch beneath the surface of prenuptial agreement law, there is far more to this issue than may first meet the eye. It may not be that easy to maintain a generic law, across the board, for all prenuptial agreements to be automatically recognised. Notwithstanding this, however, this area of law would certainly benefit from even more clarity, and let us hope that the eventual outcome of the Law Commission’s review leads us in that direction at least.

The Institute of Legal Secretaries and PAs provides excellent Family Law courses at foundation and advanced levels. More information can be found on our website here: