5th January 2011

Following several high-profile family law court cases involving the upholding of pre-nuptial agreements, a forthcoming review of post-nuptial agreements by the Law Commission is set to make the post-vow variety of separation agreement legally binding under English and Welsh law as well.

Like pre-nuptial agreements, post-nups are documents designed to protect an individual's rights to assets, property and wealth should a marriage break down.

The Law Commission's consultation exercise is due to commence in January and will examine all types of separation agreement to see whether a change in current legislation is required to make them legally binding, although each would be always examined on a case-by-case basis.

Family law experts say that the conclusion of the Radmacher v Granatino case, in the Supreme Court in October, in which Ms Radmacher won the right to have the couple's pre-nuptial agreement upheld, has already effectively set the precedent that pre-nups can be legally binding under English and Welsh divorce law.

Political commentators have suggested that if the Coalition Government legislates in favour of pre and post-nuptial agreements having weight in divorce financial settlements, then it may face accusations of encouraging marriages to fail.

However, a Ministry of Justice spokesman said, "The Government will consider the recommendations of the Law Commission when its report on pre-nuptial and post-nuptial Agreements is published."