The Law Commission begins public consultation today on full recognition for pre-nuptial agreements to be recognised by English law. Interested parties have until 11th April 2011 to provide responses. It can be found at www.lawcom.gov.uk/marital_property.htm.
This consultation has been delayed until now after its initial preparation in 2009 in view of the recent Supreme Court’s ruling in the case of Radmacher v Granatino. The prenup agreement in that case being upheld in favour of the wife. This has led to the increasing voice that many couples want to protect assets prior to marriage so that in the event of a divorce that they will not have to enter into costly litigation to fight off the claims of a partner who before the marriage was content to marry for love and not money.
Prenuptial agreements should work as long as the safety nets are in place to protect the vulnerable and by this I would refer to couples who subsequently have children or the weaker partner in financial terms. Safety nets would require full disclosure of both parties position, the regular review of the document, the need for independent legal advice and sufficient time in advance of the wedding for consideration to be given. All of these points are included within the Executive Summary provided by the Commission.
But in my view at the beginning of the relationship, neither party is expecting to receive anything from the other and upon formalising that relationship couples should be encouraged to consider protecting themselves. They are more likely to agree matters in advance of a wedding than after when a wide range of emotions may be present particularly in view of how the marriage has broken down.
So that brings me onto divorce insurance, it is available in some states in the USA and also on the continent. You can insure against most things these days so why not divorce? No doubt insurance institutions are looking at this market given that currently more than 100,000 marriages end each year in divorce but how to quantify the premiums and benefits is clearly an interesting point.
Could there be a requirement for a prenup? Does the insurance have to be repaid upon a reconciliation, are you insuring against the lawyers fees or settlement amount or cost of rebuilding a life following a divorce? Would both parties have large one-off premiums or would you pay monthly by direct debit? I am sure it will not be long until it is available but whether the costs would be prohibitive and beyond many pockets remains a question.
The UK press has numerous articles at this time of year about Family law issues some of them regarding the so-called “D-day” where D stands for divorce being typically the first day back in the office following the New Year break as couples rush to take advice following separations and arguments over Christmas and New Year.
According to the Family Mediation Helpline 1.8m couples contemplate divorce over the Christmas period and Relate report a massive surge in calls during the festive season. Clearly no qualifications are necessary explain the numerous pressures that family’s experience during this time. Couples have to cope with the financial pressures and practical arrangements such as which family to see and when. They also have to deal with the biggest hurdle of having to spend extended time together as a family. This can be a significant change of routine for both parties and as such can lead to a breakdown in communication and ultimately separations.
The Festive time is also a time when many couples become engaged and so whilst the negativity of the New Year press reports paint a picture of doom and gloom it is the start of many couples planning for the future together and hopefully they will not be put off. Many couples still consider that marriage is important and with a Royal wedding in April highlighting this point perhaps my recommendations for all couples to take advice upon a prenup continues this negativity but then as a lawyer would you expect anything else?
Mark Sage Blogs 