I read with interest the article by District Judge Duncan Adam on pre-nuptial agreements (see [2008] Gazette, 17 July, 24).

He concludes with the proposition that for a solicitor not to give advice about pre-nups could be negligent.Crossley is a further milestone on the route to recognition by the English courts of the prenuptial agreement. However, the statement by Mrs Justice Baron in NA v MA that ‘agreements between spouses were considered void for public policy reasons (but this) is no longer the case’ is not – with all respect to her ladyship – correct.

The law remains as stated by the House of Lords in Hyman v Hyman [1929] AC 601, where Lord Hailsham said, at page 608, that: ‘I am prepared to hold that the parties cannot validly make an agreement either:

  • not to invoke the jurisdiction of the court order or
  • to control the powers of the court when its jurisdiction is invoked.’

There have been a number of cases since the early 1970s in which the courts have paid some regard to some of the terms of a prenuptial agreement between parties, but this has never been more than one of the factors considered.

It is a long way short of the proposition that failure to advise on a prenuptial agreement is negligent. In fact, the contrary statement would be a safer proposition, namely that for a solicitor to advise that a prenuptial agreement will be given effect is almost certainly negligent.

Iain Harris is the author of Prenuptial Agreements: A Practical Guide (Hammicks Legal, April 2008)