Law Commission report on pre-nups — what does it all mean?
The Law Commission for England and Wales has published its report on matrimonial property, needs and agreements. The commission set out its three main aims: first, to introduce a draft bill that will make qualifying nuptial agreements legally binding, so long as certain conditions and safeguards are met; second, to recommend that the Family Justice Council produces authoritative guidance on ‘financial needs’ so as to equip separating couples with the legal knowledge to reach agreement about finances and property without litigation; and third, to recommend that the government commissions a long-term study to assess whether a non-statutory formula for spousal maintenance (such as the sort used in Canada) would work in England and Wales.
Currently, when exercising its statutory discretion to divide assets on divorce, the family courts of England and Wales can take into account a prenuptial agreement if it has been freely entered into by each party with a full appreciation of its implications and if certain safeguards are adhered to.
The fundamental change recommended by the report is that pre-nuptial and post-nuptial agreements that satisfy prescribed criteria referred to below will be ‘qualifying nuptial agreements’ (QNAs) and will be legally binding, thereby restricting the court’s powers of asset distribution on divorce providing the financial needs of the parties and any children involved have been met…
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