Lord Wilson: Prenups 'may need further attention'

Lord Wilson of Culworth has given his backing to prenuptial agreements but suggested the current law on divorce might be ‘inappropriately intrusive’ into the financial affairs of married couples and civil partners.

‘We have now reached the stage in which, if acting with appropriate care and understanding, parties should be allowed to elect the sort of marriage which they want,’ the Supreme Court justice told law students at the University of Bristol this week.

Lord Wilson said the public status of marriage, ‘surrounded by various pre-conditions’ and ‘attended by various economic benefits’, has led some to conclude that parties should not be given the freedom to regulate their own financial affairs.

‘One view is that in those circumstances parties should not be able to opt for marriage-lite, in which the law’s verdict about the extent of their obligations on divorce in the light of all the circumstances which have arisen is overridden by what they chose to agree perhaps many years earlier.

‘I wonder, however, whether by modern standards that view is too patronising. Does it make our law inappropriately intrusive into personal, adult arrangements?’

In 2010, the Supreme Court held by a majority of eight to one in Radmacher v Granatino that courts ‘should give effect to a nuptial agreement that is freely entered into by each party with full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.

Lord Wilson said he ‘very much approved’ of the court’s decision but said the issue over what would constitute fairness ‘may need further attention’. The justice – who was sworn into the UK’s highest court in May 2011 – added that he was ‘not necessarily in agreement’ on prenups with Lady Hale, who dissented in Radmacher.

The court’s deputy president had argued that while there existed considerable ‘freedom and flexibility’ within the marital package, there is an ‘an irreducible minimum’, which includes ‘a couple’s mutual duty to support one another and their children’.

The question for the court, she said, was ‘how far individual couples should be free to re-write that essential feature of the marital relationship as they choose’.

In reaching her decision, Lady Hale had labelled the law of marital agreements as ‘in a mess’ and ‘ripe for systematic review and reform’, and lent her support to the Law Commission’s ongoing project on marital property, needs, and agreements.

In 2014, the commission’s final report recommended the introduction of ‘qualifying nuptial agreements’ as legally enforceable contracts which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution.

These agreements would have to meet certain requirements but would not be subject to the court’s assessment of fairness. Couples would also not be able to contract out of meeting the financial needs of each other and of any children.

The report also included a draft Nuptial Agreements Bill. However, in a letter to the Law Commission in September 2014, then justice minister Simon Hughes said any consideration of the report would be postponed.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress