Henry Brookman contributes to an article about potential future changes in the law for prenuptial agreements. Published in The Lawyer.

It is now being reported that 43 percent of first marriages end in divorce in the UK, which is the highest level it has ever been. Even though this issue affects many people, successive governments have tended to resist involving themselves in this sensitive area.

However, the Coalition Government has now taken its first tentative steps towards reforming elements of family law. On 12th January 2011, The Law Commission published a report on its views concerning the future of prenuptial agreements in England and Wales.

The report proposes that prenups should become the norm in the UK – this in turn would help divorcing couples to more easily divide their accrued assets. In the past, prenuptial agreements have been described by some as unromantic and potentially anti-marriage. On the surface, this would appear to contradict the Conservative Party’s ‘pro-marriage’ standpoint. However, the Coalition Government justifies the move towards favouring prenups on the basis that they believe prenups can encourage marriage because of the level of certainty they can offer.

Prenuptial agreements and ‘fairness’

One of the key issues regarding prenuptial agreements is ‘fairness’. The Law Commission states that any contract should be fair to both spouses. Defining what is ‘fair’ has been an issue for some time. The Lawyer quoted Henry Brookman as saying “Questions still remain to be answered regarding what is deemed to be fair; how a contract can hold good for potentially 50 years or more; and how do you ensure the economically stronger party does not dominate negotiations?”

At this stage, there are still some challenging issues that need to be tackled before prenuptial agreements will have the clarity that many would prefer. In the meantime, the courts will still be required to decide how fair a prenuptial contact is and how much of an influence it should have on the outcome of the spouses’ assets.

If you would like to discuss with Brookman Solicitors any issues relating to prenuptial agreements please contact us.

View more news stories regarding prenuptial agreements or view our prenuptial agreements page.

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