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Family Law

The leading authority on all aspects of family law

06 NOV 2009

Pre-Nuptial Agreements: For Better or For Worse?

Robert H George, Lecturer in Law, Jesus College, University of Oxford
Peter G Harris, Research Associate, Oxford Centre for Family Law and Policy, DSPSW, University of Oxford
Jonathan Herring Fellow and Tutor in Law, Exeter College, University of Oxford

In Radmacher v Granatino [2009] EWCA Civ 649, [2009] 2 FLR (forthcoming) the Court of Appeal nodded approvingly towards proposals put forward by Resolution (the family law solicitors' group) for giving greater recognition to agreements made by couples before their wedding or civil partnership about how property and future income should be distributed in the event of a divorce or dissolution (see Thorpe LJ at para [27], Rix LJ at para [83] and Wilson LJ at para [122](v)). In its report A More Certain Future: Recognition of Pre-Marital Agreements in England and Wales, Resolution proposed that s 25 of the Matrimonial Causes Act 1973 (MCA 1973) be amended by adding a direction to the court to have regard to:

'... any agreement entered into between the parties to the marriage, in contemplation of or after the marriage for the purpose of regulating their affairs on the breakdown of their marriage, which shall be considered as binding upon them unless to do so would cause significant injustice to either party or to any minor child of the family.'

That reform, it is claimed, would help reduce the cost, conflict and uncertainty caused by the current law which, following White v White [2001] 1 AC 596, [2000] 2 FLR 981 and Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618, [2006] 1 FLR 1186 requires the court to achieve fairness when dividing up the marital pot following a divorce. The idea sounds attractive in its simplicity but will it really improve matters or might it make them worse? To begin to address that issue, some questions need to be answered.

To read the rest of this article, see October [2009] Family Law journal.

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