The Law Commission have put forward recommendations to make pre and post-nuptial agreements legally binding. This would allow married couples and civil partners to make a binding agreement about how their property or finances should be shared if their relationship breaks down. The Law Commission hopes the proposed law will make it easier for couples to manage their finances after a split. Currently, married couples and civil partners can make pre and post-nuptial agreements but the courts will not always uphold them.
However, the Law Commission has set out certain conditions for the marital agreements to be binding, which include:
- The agreement must be contractually valid (and able to withstand challenge on the basis of undue influence or misrepresentation, for example).
- The agreement must have been made by deed and must contain a statement signed by both parties that he or she understands that the agreement is a qualifying nuptial agreement that will partially remove the court’s discretion to make financial orders.
- The agreement must not have been made within the 28 days immediately before the wedding or the celebration of civil partnership.
- Both parties to the agreement must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation.
- Both parties must have received legal advice at the time that the agreement was formed.