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Pre-Nuptial Agreements: A Practical Guide
XPL Publishing, Jan 2008, Pages: 152
This book, intended for the practitioner, examines the prenuptial agreement in UK law, its origins, purposes, enforceability and future uses. It contains practical advice as to best practice and gives guidance upon the appropriate form for prenuptial agreements.
Target Market:
- family lawyers
For a number of reasons the law of ancillary relief in England and Wales has been slow to give effect, even in principle, to pre-nuptial agreements. Forty years ago, when I started in practice, the law was (can one credit it?) exceedingly wary of all agreements, even if reached with legal advice following the breakdown of the marriage, whether as to the basis of its dissolution, or to finance or even as to children; such agreements had to be presented to the court with respectful diffidence, ideally (so I considered) by young and inexperienced barristers. In particular, however, our law has long been proud to stand as a bulwark for the protection of wives from overbearing husbands; and the foundations of the bulwark have been driven deep. The philosophy has also been that, if you elect the status of marriage, you accept the whole package of legal consequences which attend it. There has also been distaste for the practice of catering for the breakdown of your marriage before you have even articulated your mutual vows. Finally our law of ancillary relief has been chauvinistic and thus poorly reactive to the general respect given to pre-nuptial agreements in other jurisdictions.
Now, however, the general approach of family law towards agreements has changed 180 degrees. The social and financial emancipation of women has made the bulwark cast around them by the law generally redundant. The philosophy has become that marriage is more made for man than is man for marriage, with the result that, within limits, people should be allowed to pick out the bits they want. The distaste to which I referred has given way to a perception that entry into a marriage in a romantic haze, oblivious to its likely difficulties ahead, to their capacity often to prove terminal and to the legal consequences which may then follow, is positively conducive to its failure. And the chauvinism of our law has had to be tempered by increasing international mobility and by our membership of the E.U.
In this book Iain Harris and Rachel Spicer have brilliantly charted the law’s fitful movement so far towards recognition of pre-nuptial agreements. The movement will surely continue in the same direction and pick up speed. It would be probably be better if the criteria for their recognition were to be spelt out in an amendment to s.25 of the Matrimonial Causes Act 1973 but, in the absence of any current appetite on the part of government to promote or even support reform of s.25, the more realistic hope is for an authoritative pronouncement in the Court of Appeal or, better still, in the future Supreme Court. But the problem for practitioners is that, however the law be finally cast, there will presumably have to be some facility for the court’s departure from the terms of the agreement in a residue of cases (and here for convenience I use the label which Baron J recently commended) of “manifest unfairness”. I suspect that, where the terms of a pre-nuptial agreement provide a result far removed from that which the principles of ancillary relief would otherwise yield, family judges may fall into two camps as to whether the case should fall into the residue, whatever its label; and it may arguably
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