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Law Commission recommends new law on pre-nuptial agreements

The Law Commission's eagerly awaited report on Matrimonial Property, Needs and Agreements has been published and, as expected, advises the Government to legalise pre-nuptial agreements, reports the BBC.

The Matrimonial Property, Needs and Agreements Report was produced by the Law Commission following the completion of a three-year investigation into the law on many aspects of marriage and separation.

The culmination of the study was the publication yesterday of the Law Commission's report, the details of which had been outlined a few weeks ago, when the recommendation that pre-nuptial agreements be legalised was first made public.

Yesterday the recommendation was detailed with the publication of the report, which suggests for the first time that the law be changed to permit couples to define how they would like their assets divided in the event that their marriage should come to an end.

The Law Commission report suggests that both pre-nuptial (before marriage) and post-nuptial (after-marriage) agreements be recognised in law.

The current legal position

The law currently does not automatically recognise the ability of couples to make pre-nuptial or post-nuptial agreements. There is no statutory provision for this, but a leading judgment in the case of Radmacher v Granatino did show that UK Courts were prepared to recognise such agreements in some circumstances.

The result is that couples can have some belief that a UK Court would currently recognise a pre-nuptial agreement, but there is little certainty as the facts of the Radmacher case were quite unique.

As a result, the Law Commission feel that the Government should legislate to state exactly the position in UK law, so that couples can press ahead with legal agreements that define their financial position in the event of a split.

Who wants a pre-nup?

It is understood that pre-nuptial agreements will not be popular with everyone, as many marrying couples believe such agreements are unromantic, requiring as they do a preparation for divorce before the couple have even tied the knot.

However, many couples, and especially those with assets to consider, will welcome the opportunity to draft such an agreement as it allows the couple to state exactly what will happen to assets and income in the event of a split.

Harry Benson of the Marriage Foundation told the BBC why some couples might find a pre-nuptial unsavoury.

"What you are essentially saying is, 'my money is more important than our commitment'," he said.

The Law Commission has set out guidance on the legal requirements that they believe should be necessary for a pre-nuptial agreement to be recognised in law. The requirements include that both parties should have received legal advice, that all information about finances should have been disclosed, and that the pre-nuptial agreement should have been signed at least 28 days before the wedding or civil ceremony.

"Pre- and post-nuptial agreements 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," said Professor Elizabeth Cooke, the Law Commissioner for property, family and trust law.