Law Commission recommends guidance on financial needs guidance and pre-nups

27th February 2014

In a report released today, the Law Commission have recommended clearer guidance should be drafted to help couples understand how their financial needs would be considered on divorce.

The recommendations also recommend that pre and post nuptial agreements become binding in English law.

In a legal system increasingly used by individuals without legal advice, the recommendations promote changes in the law to provide clarity, consistency, autonomy and certainty when dealing with assets both pre marriage and upon separation.

To achieve those objectives, the term 'financial needs' is to be clarified by the Family Justice Council and consideration will be given as to whether formulaic guidance would be workable in the current legal system to give couples guidance as to whether they are on the 'right lines' of settlement.

The Report states that "it will also give people without legal representation access to a clear statement of their responsibilities and the objective of eventual independence that a financial settlement should strive to achieve".

To give couples greater autonomy in dealing with their assets, the Report also recommends that Qualifying Nuptial Agreements be made enforceable.

At present, there is no guarantee that the courts will uphold pre-nuptial agreements, but in most circumstances they will do so where they are satisfied that the parties have entered into them willingly and after receiving independent legal advice.

Qualifying Nuptial Agreements would be binding as long as certain requirements are met, including that there has been no undue influence, the parties have received independent legal advice, have been signed at least 28 days before the wedding and that there has been financial disclosure. However, the court will still have the ability to make orders to ensure that financial needs are met, so it is vital that individuals take specialist legal advice before considering the terms of such an agreement.

A draft bill is annexed to the Report, making amendments to the current legislation. If adopted, the recommendations will change the landscape as to how people deal with their assets throughout their relationships.

The family team at Higgs & Sons is experienced in dealing with the treatment of financial needs, both in drafting nuptial agreements and on relationship breakdown.

We are committed to providing clear and tailored advice to our clients and our recent launch of PROTECT demonstrates our commitment to this aim.

For more information about the Law Commission Report or PROTECT, please contact Rhian Gray on 0845 111 5050.


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