New law needed on pre-nups

It said so-called ‘pre-nups’ are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect.

The Law Commission’s report, Matrimonial Property Needs and Agreements , includes a draft Bill that, if implemented, would bring qualifying nuptial agreements into effect.

Under the current law, couples can make pre- and post-nuptial agreements but they are not binding and the parties cannot be certain they will be upheld.

Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable.

"We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state,” said Professor Elizabeth Cooke, Law Commissioner for property, family and trust law.

"We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other’s financial needs, or for their children.

"The measures we are recommending would help couples understand and meet their financial responsibilities and, where appropriate, achieve financial independence."

The Law Commissionis also calling for better guidance to help couples assess and agree financial needs and an assessment of the feasibility of using formulae to help agree financial settlements.

When married couples or civil partners separate the courts in England and Wales have a wide discretion to make financial orders, including capital payments and ongoing maintenance. An important element of those orders is to ensure that the financial needs of both partners are met.

The Law Commission believes that the objective of such orders should be to enable both partners eventually to achieve financial independence. That is already the outcome of the majority of cases, and there is no need for a change in the law.

However, there is evidence of regional inconsistencies in how the courts approach orders for financial needs, which can make the outcome unpredictable.