Paul Hunt discusses how it could be decision time for prenuptial agreements in the UK
FOR the first time, a case involving the enforceability of a pre-nuptial agreement has been to the highest court in the UK, the House of Lords.
The case, which originated in the Isle of Man, brought to wider attention the growing pressure to move towards a situation in which such agreements become binding.
A pre-nuptial agreement is one made by parties intending to enter into a marriage or a civil partnership. It is intended to regulate how their property and assets should be divided in the event of a breakdown.
The court will take the existence of such an agreement into account in exercising discretion, but is not bound to follow the terms of the agreement.
The present position is that such agreements are not binding unless approved by the court.
Historically, agreements were always regarded as being "against public policy" because they potentially attempted to restrict the jurisdiction of the court in dealing with the division of property.
Pre-nuptial agreements are already binding in a number of other countries, and the UK is behind. It seems unlikely any statutory legislation will appear any time soon, as the Law Commission is not expected to submit a draft bill for consideration until 2012 at the earliest.
Paul Hunt is partner in the family department of Kirwans