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Prenuptial Agreements - Will England Follow Suit?
03 March 2014
Australian law has allowed binding and enforceable pre and post nuptial contracts since the end of 2000. Many other countries, particularly in Europe, South Africa and parts of the Commonwealth have had enforceable prenuptial agreements for a long time. England has not. While in England these may until recently have been worth the paper they were written on, they have not been worth much more than that.
In 2010, English case law allowed a foreign prenuptial agreement, and said that these foreign agreements would be enforced in England unless it was unfair to do so. What that might have meant is still being worked out. However, England still does not have enforceable prenuptial agreements or the law relating to them.
On 27 February 2014 the Law Commission in England recommended that the government change the law there to allow binding prenuptial agreements, with a few sensible safeguards and one big question mark.
The safeguards recommended were that each party have independent legal advice and provide financial disclosure, that they be signed at least 28 days before the wedding, that there be no improper pressure or unfairness (presumably about the forming of the agreement). The big question mark in the recommendation is that the agreement must "meet the parties' financial needs".
In England, that has been sometimes very generously interpreted.
This is not yet the law in England, only a recommendation, and it remains to be seen whether England will follow the lead of Australia and many other countries in making these agreements valid and binding and if so under what circumstances and conditions.
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