The Supreme Court has today made a landmark ruling by a margin of 8 to 1. They have decided that pre-nuptial agreements between spouses will now have "decisive weight" when it comes to divorce. This is not quite as far as saying that "pre-nups" will be legally binding, but it's not far off. The Court will look at fairness on a case-by-case basis, but the old presumption that pre-nups are not worth the paper they are written on now appears to be dead and buried.
It has also saved German heiress Katrin Radmacher (above) an awful lot of money!
AS students: this is an example of judicial law-making. Should judges be deciding things like this, or should it be left to Parliament? It's also an example of a decision overruling the previous case law to create a new legal principle - you will look at the judicial precedent system in the new year. Thirdly, it is a really good example of the law changing with changing societal values and of law reform, as the Law Commission are currently looking into this matter and will report on it in 2012.
A2 students: this is also an example of changing contract law. The presumption of the Court is usually that social and domestic agreements are not legally binding - but it appears not any more where pre-nups are concerned. So - are the Court prioritising freedom to contract when they should be protecting the weaker party? Will the fairness requirement solve this, or is "fairness" too vague a concept to rely on if one party is almost pressured into accepting a pre-nup as a condition of marriage? These concerns are detailed further in this article.
You can read more on this here and here.
Good coverage! ;-)
ReplyDeleteIt is worth noting that ante-nuptial agreements may well carry less weight (and perhaps no weight at all) where there are children of the marriage and the court has to consider the welfare of those children following a divorce.
ReplyDeleteGood point ObiterJ and thanks for commenting!
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