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Posted 28 February 2014
by Tracy Lambert

Law Commission proposes that pre-nups become legally binding

In a recent report, the Law Commission has recommended that pre and post-nuptial agreements should be legally binding. Currently, couples and civil partners can make a pre-nuptial agreement before they marry but the courts do not always uphold them. If the draft Nuptial Agreements Bill becomes law then “qualifying nuptial agreements” would be enforceable contracts, which would enable couples to make binding arrangements for the financial consequences of divorce, but they could not be used by the parties to contract out of meeting the “financial needs” of each other and of any children.

So if the law is enacted, married couples and civil partners would be able to make a binding agreement about how their property or finances should be shared if their relationship breaks down but only if:

· both partners have received legal advice

· both partners have disclosed all relevant
information about their finances

· the pre-nuptial agreement is made at least 28 days before the wedding or civil

Tracy Lambert, head of the family law team in Exeter for Tozers Solicitors LLP, comments: “I expect that these measures will be especially popular with people considering second marriages who want to protect their property for their children. If the government accepts the Law Commission’s recommendations, I would hope it would give couples who have made qualifying agreements greater clarity. At the moment, whilst pre- and post-nuptial agreements are becoming more commonplace, the courts will not always follow them and lawyers are, consequently, not able to give clear advice about their effect. However, do remember that qualifying nuptial agreements will not be a vehicle for avoiding meeting the financial needs of partners and children and, as always, the question that is still to be answered is what falls under the definition of ‘needs’.”

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About the author

Tracy Lambert

Partner and Solicitor

Partner based in Exeter's family team