Prenuptial agreements should be legally binding, lawyers say

Monday, 22 November 2004 12:00 AM

Prenuptial agreements should be legally binding, a new report from family lawyers says today.

Presently, couples can sign an agreement setting down the exact amount that each person will receive if they split up, but there is a lack of certainty over whether these will be upheld by the courts.

Judges have been willing to take prenuptial agreements into account when ruling on divorce cases, but they are not legally enforceable.

In its report published today the Solicitors Family Law Association says the agreements should be recognised by the courts so that couples can determine themselves how their financial split will be handled and cut the cost of divorce settlements.

Courts would still have the power to override the agreement in case of a "significant injustice" to either party.

David Salter, chairman of the SLFA law reform committee said: "Our report comes out of a growing sense of unease amongst divorcing couples about the unpredictability of the courts' approach to the financial aspects of divorce.

"People want certainty and the ability to decide themselves what a fair outcome would be if the relationship ended. There is a need, at times, to protect the weaker person in a marriage but where a couple choose to make an agreement in the full knowledge of its effect, they should be entitled to have it upheld by the courts."

Demand for prenuptial agreements, also known as pre-marital agreements, is on the increase due to higher numbers of second and subsequent marriages.

Media coverage of high profile divorce cases is also leading to increased demand. Concern over the courts' approach to finance on divorce has increased since a court ruled that footballer Ray Parlour had to pay a percentage of his future earnings to his ex-wife.

Prenuptial agreements are currently seen as contrary to public policy in England and Wales due to concern they may condition people to the breakdown of their marriage and because they would remove the ability of the courts to tailor financial solutions for families when a marriage breaks down.

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