13th July 2010

Divorce solicitors in London, Brighton and throughout the UK have for some time now been seeking clarification on the legal standing of pre-nuptial agreements in English and Welsh family law.

Pre-nups are currently unenforceable by family law courts in England and Wales; however, the forthcoming ruling of nine Supreme Court judges on the test-case of Radmacher v Granatino will bring the long-awaited Law Commission consultation on family law surrounding pre- and post-marriage agreements to a conclusion.

The Law Commission aims to present a set of "best practice guidelines" for the prevention of prospective husbands, wives and their family law lawyers attempting to coerce spouses into unfair pre-nuptial agreements.

The consultation paper, which will be finalised after the test case's conclusion, will be submitted to the Government with an accompanying draft bill for family law reform.

The Sunday Telegraph reported Professor Elizabeth Cooke, the Law Commissioner in charge of family law, as saying, "A lot of people have said to us they are deterred from marriage by the current law.

"If the current law is deterring marriage that isn't good for public policy."

It is believed that the consultation paper will state that draconian pre-nuptial agreements which could potentially leave children and ex-spouses in financial hardship or at the mercy of state benefits would be made legally unenforceable.

Further, for a pre-nup to be upheld in the family law court, the Law Commission would recommend that both spouses will have received independent legal advice before signing any agreement.

The Supreme Court ruling on the current test case is expected by the end of July and, until that time, divorce solicitors will have to wait before they receive definitive guidance on the application of pre-nuptial agreements in English and Welsh divorce law.