Marital agreements including pre-nups and post-nups could become legally binding without the need for court approval under a proposed new law.

At present, such agreements are not legally binding although there has been a growing trend for courts to uphold them unless they are unfair to one side or the other.

Now the Law Commission, which advises the government on legal matters, wants to introduce “qualifying nuptial agreements” which would be enforceable contracts in their own right, not subject to the scrutiny of the courts.

The commission’s report says: “The qualifying nuptial agreement will be a reliable way for couples to decide in advance how their property will or will not be shared, without having the fairness or unfairness of their agreement scrutinised by the court.

“We have built in a number of safeguards to ensure, as far as is possible, that such agreements are only made knowingly and willingly, and without giving rise to hardship.”

The commission says that an agreement would only be a qualifying nuptial agreement if it meets certain requirements when being drawn up. Both sides would need to receive independent legal advice and both must fully disclose all their assets in advance.

It will not be possible to use the agreements to contract out of making provision for either party’s financial needs. The commission says: “We make it clear that an agreement which leaves a spouse or former spouse without reasonable provision for income, housing, and the other elements that family lawyers understand as “needs”, will continue to be subject to the courts’ control.”

The commission has put forward a draft Bill, the Nuptial Agreements Bill, which would introduce qualifying nuptial agreements, subject to parliamentary approval.

Justice Minister Simon Hughes said the government will now consider the proposals in detail. He said: “The government is committed to improving the family justice system so divorcing couples can achieve the best possible outcomes for themselves and their families, using the courts only where necessary.”

We shall keep clients informed of developments.

Please contact us if you would like more information about the issues raised in this article or any aspect of family law.