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JOHN EEKELAAR, Emeritus Fellow, Pembroke College, Oxford
One reason for wanting binding ante-nuptial contracts is that the way courts exercise their discretion under s 25 of the Matrimonial Causes Act 1973 is unpredictable. There are, of course, other reasons - the most significant being that adults should be able to decide on the consequences of their actions. This is a good principle: but it has its limits, as Antonio discovered in The Merchant of Venice. Apart from the (not insignificant) problems of intent, interpretation and changes of circumstance, contracting parties could find it difficult to evaluate the significance of their agreement without some idea about what would happen if they failed to agree. It is true that practitioners are reported as saying, understandably, that there is no point in having a contract if it reflects simply what would happen in any event (E Hitchings, ‘From Pre-nups to Post-nups: Dealing with Marital Property Agreements'  Fam Law 1056). But it seems essential to responsible negotiation for both sides to know how far they are accepting a deviation from the default outcome.
That can presently be very difficult to know. So how can the problem be, if not overcome, then at least reduced? The courts have been very reluctant to adopt anything that might look like a ‘formula' for financial and property allocation, unless the ‘presumption of equality' can be said to be such. The reasons may lie in the wording of s 25 which requires a global assessment of all the circumstances of the case.
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