Love Nothing to Do With It as Prenups Get U.K. Legal BackingBen Moshinsky
Prenuptial agreements should be enshrined in U.K. law, a Ministry of Justice body said in a 221-page report on divorce that mentions the word “love” just once.
Prenups should be “enforceable contracts, not subject to the scrutiny of the courts,” the Law Commission said in the report published today. Strengthening laws around nuptial agreements would “allow more certain protection of family property, inheritance and businesses,” it said.
Giving prenups “contractual weight will, quite rightly, be seen as a game changer,” Adrian Clossick, a divorce lawyer at Stewarts Law LLP, said in an e-mailed statement. The move would “promote marriage amongst those who would otherwise be leaving themselves at the mercy of an uncertain and unpredictable family law regime.”
The commission’s review of U.K. divorce law, which included a draft Nuptial Agreements Bill, was triggered in part by the case of German heiress Katrin Radmacher and former JPMorgan Chase & Co. investment banker Nicolas Granatino. The U.K. Supreme Court ruled for the first time in 2010 that a U.S.-style prenuptial agreement on asset division, reached before marriage, should be decisive.
London has been called the “divorce capital” of Europe by lawyers and some judges because of U.K. rulings that were criticized as too generous to the spouse who makes less money, often the wife.
The commission started a probe of U.K. pre-nuptial accords in January 2011, three months after the Radmacher judgment.
“Since the decision in Radmacher, clients have been much keener to sign up to such agreements,” Judith Fitton, a lawyer at Mundays LLP, said in an e-mailed statement. “The court is carefully scrutinizing each case that comes before it and only holds the parties to the agreement if it is fair and reasonable to do so.”
The commission said that prenups should fulfil five criteria to be legally binding.
The potential husband and wife must have both received legal advice, have disclosed their own finances to the other party and sign a statement that they understand that the contract will “remove the court’s discretion to make financial orders,” according to the report. The agreement has to made more than 28 days before the wedding, the commission said.
In the 2010 U.K. Supreme Court case, the French-born Granatino sought a bigger payout from Radmacher, arguing their prenuptial agreement shouldn’t be enforced because she withheld the full extent of her wealth and he didn’t have proper legal advice. The court disagreed.
In referring to romantic love, the Law Commission noted “it is a matter of experience that people are willing to agree, when they are in love, to things that they would not otherwise contemplate.”