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UK divorce law faces major shake up over pre-nuptial agreements

The UK Government is considering a major shake up of divorce law, with a proposal to allow 'pre-nuptial' agreements to have legal force for the first time, reports the Daily Mail.

The wealthy want them, Kanye West has rapped about them, and every Hollywood A-lister is purported to have one, but the UK has long resisted the temptation to enshrine 'pre-nuptial' agreements into law.

This is all set to change, however, under proposals currently being considered by the Law Commission and the UK Government, which could see divorce law radically altered in the UK for the first time in decades.

The Law Commission proposals are due to be published later this year and are likely to include a draft bill for the Government and Parliament to consider. The bill and the proposals are the result of a consultation on the issue of pre-nuptial agreements, which the Law Commission started back in 2011.

Pre-nuptials

Pre-nuptial agreements are essentially contractual documents entered into by couples prior to marriage. The idea is for couples to be able to determine how their assets would be split if they were to later seek a divorce.

A pre-nuptial agreement is drawn up by a solicitor and effectively states the assets that the couple will bring into the marriage and determines the split of assets if the marriage comes to an end.

Established principles

In the UK there are well-established principles concerning the division of assets in divorce. There is an overriding principle that both spouses receive half of the total estate; however, this is most common in long marriages with no dependent children.

In shorter marriages where there is greater disparity in the contributions to the joint estate the settlement may be different. Similarly when there are dependent children, the division of an estate is done by 'need', with the parent looking after the children often gaining the matrimonial home.

Pre-nuptials have traditionally had little effect in UK law, with these established principles having superiority over any agreement made by the couple before they married.

UK law

The landmark case of Radmacher v Granatino in 2010 in the UK Supreme Court was the first time that a pre-nuptial agreement was given some legal effect in a UK court. In that case the Supreme Court ruled that pre-nuptial agreements freely entered into could be enforceable in UK law. However, the judges were reluctant to go further and stated it should be for the Law Commission and Parliament to amend divorce law if pre-nuptials are to have a greater role in UK family law.

In the Radmacher v Granatino case wealthy German heiress Katrin Radmacher was allowed to keep her family's £100m fortune from her husband during their divorce largely because of the contents of a pre-nuptial agreement signed before marriage.

In an interview with the Daily Mail, Andrew Newbury of family law practice Pannone LLP said the advent of legal pre-nuptials in the UK would make divorce fairer.

"If there are clear principles that people can understand, more couples should be able to resolve matrimonial disputes without so much need to have recourse to lawyers," he said.