Some 11 years after introducing a divorce reform bill that would make pre-nuptial agreements binding, a prominent lawyer member of the House of Lords has renewed pressure on the government to crack on after declaring that nuptial agreements are being undermined by judicial discretion.
Crossbench peer and former Bar Standards Board chair Baroness Deech (Ruth Deech DBE KC) told the House of Lords on Thursday that the Supreme Court’s 2010 judgment, Radmacher v Granatino, opened the door to challenges by requiring nuptial agreements to be fair, ‘a concept that lies in the eyes of the beholder judge'.
‘That has meant that excess judicial discretion has undermined their usefulness and led to constant challenges to the validity of agreements which the couple, having had legal advice at the outset, believed were valid, until advised that it might be worth attacking them when the break-up occurs and one of them wants a larger award than that provided for in the prenup', Deech added.
Backing Deech, Baroness Shackleton (solicitor Fiona Shackleton) said couples were entitled to know how judges will exercise their discretion.
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Lord Faulks, who served as a justice minister in the Conservative administration, said the time had come for action. Instead of producing legislation that covered all uncertainties in relation to financial remedies, ‘it would be much more sensible, I suggest, to grapple with this relatively simple change to the law, which would be consistent with the law in continental Europe and probably in Scotland'.
Baroness Butler-Sloss (Elizabeth Butler-Sloss), a former president of the family division, also backed calls for pre-nuptial agreements to enter the statute book - but suggested judicial discretion may be required if, for instance, one side failed to properly disclose their debts and assets. Butler-Sloss also questioned how nuptial agreements were enforced if circumstances changed significantly during marriage.
Peers hoping for a definitive answer from the government on reform will have to wait.
Prisons minister Lord Timpson, standing in for ministerial colleague Lord Ponsonby, said the debate served as a reminder that the law relating to prenups raises complex questions about the role the courts and divorcing couples should take on dividing assets. The government's views on the Law Commission's scoping paper on financial remedies reform will be set out 'in due course'.
Ending the debate, Deech urged the minister 'to go back to the ministry and tell them to get on with it'.
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