The Law Commission’s Proposals On Nuptial Agreements

The Law Commission has on 27 February published recommendations in relation to the enforceability of marital agreements, and to clarify the law relating to "needs" on divorce or dissolution of a civil partnership.

The recommendation is that "qualifying nuptial agreements" will be enforceable on divorce/dissolution of a civil partnership provided that certain procedural requirements are followed, and as long as "financial needs" are met. The procedural requirements are as follows:

The agreement must be contractually valid (and so for instance not be entered into under duress) It must be made by deed and contain a statement confirming that the parties understand its effect It must not be made within 28 days of the marriage/civil partnership There must be financial disclosure There must be legal advice It will not be possible to waive the right to disclosure and legal advice.

If the agreement qualifies, then it will be enforceable provided it caters for financial needs. The intention is that the meaning of "financial needs" is clarified in guidance to be published by the Family Justice Council. This will be relevant whether or not there is a nuptial agreement. The recommendation is that the guidance goes beyond words and...