Law Commission to review pre-nups

The enforceability of pre- and post-nuptial agreements between spouses and civil partners is to be examined by the Law Commission in a new review.

Marital property agreements are not currently enforceable in the UK if spouses divorce or a civil partnership is dissolved, although a court may consider them in determining what ancillary relief is appropriate.

A Law Commission spokesperson says there is a view that the fact that pre-nuptial agreements are not currently binding may deter some from marrying or entering into civil partnerships.

Resolution wants pre-marital agreements made binding unless upholding an agreement would cause significant injustice.

A spokesperson says: “Pre-marital agreements are not currently enforceable. They are sometimes upheld by the courts but the law falls short of providing the level of certainty that couples want when they make an agreement.”

Resolution concedes that there is a risk of satellite litigation flowing to define “significant injustice”, but concludes that this is “a small price to pay for the certainty of pre-marital agreements”.

The Commission’s review will be begin next year with a draft Bill expected in 2012. In the meantime, says Charles Russell partner, Sarah Higgins, pre-nuptial agreements will continue to be dealt with by the courts.

“This means that there will still be uncertainty when advising clients on marital breakdown and the potential for expensive litigation,” she says.