Make pre-nuptial agreements binding, family lawyers say

Make pre-nuptial agreements binding, family lawyers say

Britain's biggest group of family lawyers is calling for prenuptial agreements to be made legally binding.

The contracts between couples about to marry have become increasingly popular in Britain but have no formal legal status. "Pre-nups" are binding in parts of the US and Canada and in Australia, but in Britain the courts have traditionally seen them as against public policy.

The 5,000-strong Solicitors' Family Law Association (SFLA) says in a report that the agreements should be enforceable in the courts of England and Wales, except where upholding an agreement would cause significant injustice.

In 1998 the government floated the idea of making them enforceable to cut the cost of divorce cash battles. But the proposal was not taken up after judges said they "lacked enthusiasm" for it as a body, although a minority favoured it.

The SFLA, whose membership includes most specialist family solicitors in England and Wales, aims to promote "a non-confrontational atmosphere in which family law matters are dealt with in a sensitive, constructive and cost-effective way".

David Salter, chairman of the SFLA law reform committee, which produced the report, said: "Our report comes out of a growing sense of unease among divorcing couples about the unpredictability of the courts' approach to the financial aspects of divorce.

"People want certainty and the ability to decide them selves what a fair outcome would be if the relationship ended.

"There.....continued below

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is a need, at times, to protect the weaker person in a marriage, but where a couple choose to make an agreement in the full knowledge of its effect, they should be entitled to have it upheld by the courts."

Only a handful of cases involving pre-nups have come to court, because few couples have them. Lawyers say the numbers are growing but many are deterred by the lack of certainty about whether they would be upheld.

In the few cases that have reached court, judges have been willing to enforce at least some terms of premarital agreements if they considered them fair.

In a landmark case in 2000, the high court largely upheld an agreement signed by a north London property tycoon worth up to £150m, who had been reluctant to marry, and his pregnant wife-to-be, who had no job but a £1m trust fund from her father.

She was awarded only the lump sum she had signed up to in the agreement - £120,000 after a two-year marriage - and a London home worth £1.2m, which would revert to her ex-husband when their son grew up. All she got on top of the agreement, which was signed the day before the wedding and did not mention yearly maintenance, was £15,000 a year to run the house.

But the law still "falls short of providing the level of certainty couples want when they make an agreement," says the SFLA.

Judges have a wide discretion and the lack of certainty about what a court would decide encourages divorcing couples to resort to expensive court battles rather than reach their own settlements.

The SFLA says public anxiety about the courts' approach to finance on divorce has escalated since Karen Parlour, former wife of the footballer Ray Parlour, broke new ground by winning a share of his future earnings this year.