We’ve all witnessed the pre-wedding excitement in which soon-to-be brides and grooms are swept up in the magic of marriage and distracted by all things fluffy and white. In all this excitement, it is easy to forget the somewhat dry but hugely important aspects that come after the wedding, such as arrangements concerning money. Whilst money might not buy love, it does play an important part in relationships. Prenuptial agreements are made between soon-to-be-marrieds in order to secure financial arrangements and protect parties should things turn sour.

The Law Commission’s Proposal For Prenups

After four years of consideration, the Law Commission has proposed a new approach to post-separation asset division, calling for an introduction of standard formulas and official guidance to aid financial disputes between divorced couples. As unromantic as it sounds to arrange financial issues before even getting married, prenuptials do encourage frank and honest conversation between couples, and are best done before all thoughts go to honeymoons, flower arrangements and invitation lists. Although prenuptials are generally recognized in English Courts, the Law Commission has suggested taking things one step further and making prenuptials fully binding. It has suggested some essential formalities. Couples would be required to fully disclose their financial positions and seek separate legal advice before marrying, and any prenuptial arrangements are enforceable “only after both partner’s financial needs and any financial responsibilities towards children have been met.”

That being said, such a proposed legal arrangement will not replace or override applications for financial orders during the divorce processes. Such a change matches the practice in other European jurisdictions, in which contracts regarding property ownership are commonly made, whilst the Court still holds the power to make final decisions regarding maintenance payments. Such maintenance payments would cover housing, childcare, education and income needs, and would largely depend on the financial structure within the marriage. For example, the wife would be more likely to receive spousal maintenance if the husband was sole breadwinner throughout the partnership than if both parties earned similar amounts. The Law Commission has requested that the Family Justice Council provide “authoritative guidance on financial needs” for couples arranging their prenuptial agreements, and have suggested that a “long term study should be arranged to…give couples a clearer idea of the amounts that might need to be paid to meet needs”.

This type of assessment appears to be successful in jurisdictions such as Canada, where legal bodies provide maintenance guidelines which are then further negotiated between the couples themselves. Such proposals have never before been taken so far before regarding prenuptial agreements. These changes are largely supported by the Law Commission because they provide couples with greater certainty, autonomy and pre-agreed financial control. Discussing financial and children arrangements before the wedding is a gentle reminder to couples that marriage is not all white dresses, smiles and presents, but also about compromise, real life and a unity of two people (not necessarily two bank accounts). Prenuptial arrangements drive people to consider what they really want for themselves and their partner, and their feelings of trust for each other, before making a life-long commitment. There are some dissenting views.

The Bishop of Shrewsbury disagrees with such proposals as he believes they turn wedding vows into ‘provisional’ promises and encourage couples to consider the possibility of separation even before they are married, which he says sets up marriages to fail. He states that the legal provision “would surely empty the promise ‘for better for worse…to love and to cherish ‘til death do us part’ of all meaning.” The report and suggestions by the Law Commission remain proposal only.

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