Prenuptial agreements nearing legal status

Prenuptial agreements could soon acquire legal force under new proposals from the Law Commission.

Prenups have long been a trend for savvy couples that want to be spared the pain of long divorce proceedings, if things fail to work out in the long term.

A recent landmark Supreme Court ruling in favour of a German heiress who shared a prenuptial agreement with her husband Nicolas Granatino has recently led the way for prenups to have a legal basis.

Katrin Radmacher famously didn't tell her husband, a banker turned student, that she stood to inherit billions from her wealthy family.

The husband's attempt to claim more money after finding out her real worth failed because Radmacher had made him sign a prenuptial agreement.

While few people are likely to face losing such huge amounts of money, a prenup can certainly guarantee that individuals don't spend more money fighting over goods than they are actually worth.

In light of the recent increase in prenups being made and the major ruling, the Law Commission is currently conducting a consultation on prenuptial agreements.

Since the process began it has decided on a number of proposals which could make prenuptial agreements become an officially accepted measure in court proceedings.

When making a prenup each party must make a "full and frank disclosure" of their financial situation, the Law Commission advises.

While the details of the prenuptial agreement are clearly determined by the couple's individual circumstances, the Law Commission has suggested that no prenup should be enforceable if it doesn't take into account the situation of any dependants.

In addition, any prenuptial agreement that means one party would be forced to live off state benefits should not be acceptable under law.

Professor Elizabeth Cooke, the lead law commissioner on the consultation, said that prenuptial agreements "need to be handled with care" as any legislation must recognise that couples want more control over their lives, while preventing the possibility of exploitation or enforced hardship.

She added that getting that balance is proving a challenge, owing to opposing views as to what extent courts should become involved in enforcing and legislating on prenuptial agreements.

"Some feel that where couples have reached agreement, the courts should not be involved; yet the courts' approach is primarily protective, and some feel that they should not be wholly excluded", Ms Cooke said.

One of the best ways to write a prenup and reduce solicitor fees is to use Lawpack's Prenuptial Agreement Kit.

The Prenuptial Agreement Kit includes the legal form, plus expert guidance from a family lawyer which discusses the contents of the prenup, what might happen to shared property, maintenance payments, and costs.

A key piece of advice which will help couples put together a potentially legally binding prenuptial agreement is to focus primarily on financial matters as other demands related to domestic life - such as washing up or taking the bins out - could affect how seriously the prenup is taken in court.

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Published on: February 8, 2011

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