At present, although such agreements are increasingly being taken into account by the divorce courts the terms are not always upheld. In each case, the court will consider all of the circumstances including the existence of any pre- or post-nuptial agreement but still retains the ability to depart from the terms of any such agreement in deciding how the financial aspects of a marriage should be resolved. Whilst undoubtedly this has advantages, it also can bring with it much uncertain and often, previously unanticipated expense for the parties.
Under the Law Commission’s proposed changes, married couples and civil partners would be able to enter into legally binding agreements termed ‘qualifying nuptial agreements’, which set out how their finances or property should be divided if they split. This would give them greater control and would make the financial outcome of separation more predictable.
To qualify as such a legally binding agreement, the Law Commission has given clear guidance that any such agreement would have to meet the parties needs and would also have to take into account and provide for the fact that there may be children of the marriage. Such rigid criteria would ensure that couples are not held to agreements which are fundamentally unfair or which enables a spouse to contract out of providing for their children. Both parties would also have to have disclosed all relevant information about their finances and further would need to have received legal advice in the preparation of any such agreements.
It is encouraging in today’s society where such agreements are becoming more commonplace that parties are given the control of determining how the financial aspects of their marriage are determined upon separation or divorce yet safeguarding such agreements to ensure they are not used to impose hardship nor escape responsibility for children”.
