Lawyers eagerly await Law Commission's Recommendations
The Law Commission (the reform watchdog) is getting ready to make it clear in the next few days what should happen to assets in matrimonial cases.
In particular what is interesting Lawyers is the fact that property that was acquired before the parties were married or property that was inherited is going to become very relevant in their findings.
It is believed that ministers are going to be encouraged by the Law Reform body to protect in law prenuptial agreements. At the moment they are a very significant circumstance but are not automatically binding upon divorce courts.
There is a new development whereby the previous 50/50 initial approach might well be replaced by the spouses needs. This is already partly the case in appropriate circumstances but is not the main objective of the Court.
There has been a lot of pressure recently to suggest that as long as prenuptial documents have been dealt with property with disclosure and legal advice then they should be adhered to. The Commission wants to go further and enshrine this in law specifically rather than leaving it to the Judges discretion to see if matters were dealt with appropriately.
Are we not seeing a return to the law in the 1990s when the overriding priority was meeting the needs of the weaker spouse. This was challenged in 2001 with the case of White which brought in the yardstick of equality.
The case of the German Heiress Radmacher seems to bring the enforceability of prenuptial agreements closer. This practical breakthrough in the Radmacher case as well as the Law Commissions call for change can and will only serve to increase the number of people considering a prenuptial agreement in order to regulate how their wealth is protected. This is particularly true with second marriages.
The preparation of a proper prenuptial agreement is almost bound to cut down the likelihood of disputes at a later stage.