Prenuptial Agreements

Motion to Take Note

15:49:00

Moved by

That this House takes note of the law relating to prenuptial agreements.

My Lords, it may interest noble Lords to know that I am often taken to one side by elderly female Peers to beseech me to reform the law in this area. They are reluctant to marry, or remarry, long-term partners because of fearing the loss of assets should there be a subsequent break-up, a loss that would deprive the children of the first marriage of their expected inheritance. One might be surprised at the energy of the beating hearts under the ermine. One should not be, because the Office for National Statistics has shown that the number of so-called silver splitters—divorcees over 65—has increased by 75% in the last 20 years and lawyers are advising them to make prenuptial agreements, commonly known as “prenups”. Those who have been through a divorce once do not want to experience the financial consequences a second time. Others decide not to remarry legally. Judging by the number of letters I get from members of the public when the possibility of reform is reported, they are well aware of, and intensely anxious about and upset by, financial provision law; that is, the law about splitting assets on divorce. I have never received a letter in support of the existing law on this topic. A prenup is an agreement made between a couple, either before or during their marriage or civil partnership, which governs the way in which their assets are to be divided on divorce. Many foreign jurisdictions expect couples to enter such binding arrangements. They are not, however, legally binding in England and Wales, although the Supreme Court ruled in the case of Radmacher v Granatino that they should be upheld if fair and freely entered into. They are popular here with couples with inherited wealth, or wealth acquired before marriage; couples who have children from a previous relationship; foreign couples; same-sex couples; and young career people who have built up assets before they marry. Various studies have tried to estimate the number of couples who do make prenups, albeit, as I said, with no guarantee that they will be respected by the courts. The estimates vary from 13% to 20%. Certainly, prenups have become more common in the last few years. They no longer feel unromantic, unusual or just for the rich. They do not predispose to divorce, which is an argument used in the past. Indeed, in countries where prenups are more common the divorce rate is lower than ours. Such agreements are more likely to provide less ongoing maintenance for a spouse, in keeping with the trend away from such support, but should—and usually do—provide for support for the children. All this applies equally to post-nups; that is, similar agreements entered into during an ongoing marriage. Couples believe these agreements to be binding, following the judgment in Radmacher v Granatino. What is the problem that requires reform—and this debate? In summary, the Supreme Court judgment opened the door to challenges to those agreements by requiring them to be “fair”, a concept that lies in the eyes of the beholder judge. That has meant that excess judicial discretion has undermined their usefulness and led to constant challenges to the validity of agreements which the couple, having had legal advice at the outset, believed were valid, until advised that it might be worth attacking them when the break-up occurs and one of them wants a larger award than that provided for in the prenup. There are many examples. A case called KA v MA, which concerned the effects of alleged duress, ended up with the wife getting £1.35 million to meet her housing costs on top of what she had already agreed, with £300,000 in legal costs. The rest of the fees had to come from that allocation to the wife, no doubt severely depleting it. In another case, Ipekçi, the ex-husband had signed a prenup with his wife. She was the heir to the Avon cosmetics fortune. Nevertheless, he was still awarded £1.3 million for a house and an allowance for the rest of his life, in part because his legal advice was suspect. They met when he worked as a concierge at the Le Parker Meridien Hotel in New York. Later, he was employed at a well-known London hotel, at which I have stayed, but these things do not happen to me. It is this doubt about enforceability that is wrecking the usefulness of prenups. The doubts centre on what is fair and what are the needs that some judges hold must nevertheless be met. The accumulation of cases leaves real doubts over the ability to predict the validity of any current prenups. Judges still insist on applying their own vision of what is fair and exercising the much-criticised set of factors in Section 25 of the Matrimonial Causes Act. Discretion, I am afraid, is what we know to be the source of the problems in financial provision law. A problem in today’s divorce law is how to define the needs of the divorced spouse, usually from the wife’s perspective, and who should meet those needs. That is why that word needs clarification. Judges have given so many different interpretations that we do not have a workable standard, not even under the guidance of the Family Justice Council. Some judges are more parsimonious than others where there is a prenup, but they all agree on the need for housing where there are children, provided there are sufficient assets. What is fair, and whether that standard should be applied to a freely entered-into prenup, is another undermining issue. So we come to reform. The Law Commission has done detailed and profound work in this field, as I shall describe and which I support. Nearly all the other organisations in the family law field have come out in favour of statutory enactment of the enforceability of prenups. It has even been suggested that we should follow the example of some civil code countries and expect engaged couples to see a lawyer and choose from a menu of financial models to govern their financial relationship during and after the marriage. Such discussions would be less intricate and cheaper than what people spend on an average wedding. I have on several occasions taken a Bill through this House—the Divorce (Financial Provision) Bill—which would reform the whole of that law, not just prenups. In it, I suggested that prenups should be as binding as any other contract, provided that there was no duress, that the couple had legal advice before signing, and that there was full disclosure. But the Government have failed to act on this and have ignored the Law Commission’s recommendations to put prenups on a statutory basis. Think how much money and how much court time would be saved if the tens of thousands of prenups that are challenged now could be presumptively binding. Think how much money and court time could be saved if couples could avoid all the fees and general waiting times and aggravation of fighting in court over their assets on divorce if the law was reformed. It is true that many couples settle before a court hearing, but they would have started proceedings, and that too is expenditure that could be avoided. Recent court statistics show that the court process can take from six to 12 months; that there were 44,563 financial provision applications in 2023; and that in 2024 they were up by 7%. Tens of thousands of cases might never have to come near court. Millions would be saved if the Government would reform the law. In 2014, the Law Commission’s report on matrimonial property needs and agreements recommended that prenups should be put on a statutory footing and should be made by deed no less than 28 days before the marriage, after legal advice and with disclosure. In my view, it was unfortunate that there was a potentially destructive discretionary element in this proposal; namely, that the parties could not, by agreement, opt out of meeting financial needs, undefined. Indeed, with advances in AI, it has been suggested by the pre-eminent family judge, Sir Nicholas Mostyn, that the time will soon be with us when AI can produce an agreement that would be bound to be upheld as valid, because AI would know what was meant by “needs”, and that would satisfy a judge. This country is lagging behind in achieving that cost-saving certainty. Scotland and New Zealand, for example, have legislated for binding prenups and have experienced no difficulties. The Law Commission presented a draft Bill to enact its prenup recommendations, and it is oven-ready, as we say, needing only to be heated up to the right degree by this Government. Not only is the Bill ready but, in December 2024, the Law Commission reported again and recommended the statutory enactment of a prenup law. It has been 16 years since the fundamental decision in Radmacher and 10 years since the Law Commission prepared the ground for statutory reform. We are decades behind most other countries, wasting money and court time and upsetting couples’ legitimate expectations of certainty. If the Bill were enacted, it would persuade older couples to take the plunge; I envisage a queue of weddings taking place in St Mary Undercroft. It would bring us into line with Australia, Ontario, the French civil code, New Zealand and the Hague Convention on the Law applicable to Matrimonial Property Regimes. It would respect autonomy and the freedom of contract, but our Government have said no more than that they are considering the reform as part of a wider consideration of family law reform. Governments have failed to take up reform because they are unable to address the issues of principle about who maintains whom, to what level and for how long, and the effect of social changes. The lawyers who act for the highest earners on divorce—with the honourable exception of the noble Baroness, Lady Shackleton—may well fear a loss of business, although I am sure that the wealthiest couples will always have complex arrangements that will require legal advice. At the other end of the scale, most couples do not get any legal aid for divorce, and are left without the knowledge and framework that they need at the most emotional time of their lives. A straightforward law on prenups would be of immense value to them. Prenups are popular, harmless and protective. They offer an escape from the bad, unreformed financial provision law, and represent freedom of choice and contract. Why can we not legislate for them now? What has held it up is the ill-founded belief that all financial provision law must be reviewed and amended at the same time. That is simply not the case. Prenups are a free-standing area, and even if wholesale reform is delayed, enacting prenups would enable couples to avoid the uncertainty, expense and bitterness of the current law and any future law to come. I mention future law because the Law Commission’s report of last December was only a “scoping” report. It put forward four models for reform, and, unfortunately, scoping gives the Government an excuse to do nothing. I wish that the Law Commission had been allowed to get on with a wholesale reform of financial provision law, which is now over 50 years old and costs the state and couples so much expense and aggravation. I hope that it will not be brushed under the carpet; it could take a long time to occur. The noble Baroness, Lady Shackleton, and I were promised a review of financial provision law within three years of the passing of the divorce Bill in 2020, and we dropped amendments to the Bill in reliance on that promise, which has not been fulfilled. The current financial provision law—all of it, not just prenups—is so uncertain and unpredictable that it could well be said to be in breach of the rule of law. I urge the Government to get on with reforming it and to take up the challenge in the latest Law Commission report. In the meantime, will the Minister get on with putting prenups on a statutory basis? The Bill is ready and there is no reasonable opposition. We need to get on with this and not wait for the pot of gold at the end of the rainbow, which is wholesale reform of our antiquated financial provision law. I beg to move.

16:04:00

My Lords, it is a great pleasure and a privilege to follow the noble Baroness, Lady Deech, in this debate. I thank her very much for bringing it to the House’s attention. First, I declare my interest as listed on the register: I am a solicitor of 45 years, specialising in family law. I wish to make it absolutely clear that nothing that I say in this speech reflects any of my current matters before the courts. Indeed, it could not, because, before the end of this legal year, I have five cases being argued which involve prenuptial contracts—two in the High Court, two in arbitration and one in the Court of Appeal. In some, it is argued that it is not appropriate to enforce, and in others that it is appropriate to do so. I am also a patron of a Marriage Foundation. The origins of prenuptial contracts not being enforceable stems from the notion that it was unconscionable to contemplate the breakdown of a contract which is intended to last for life. That is possibly the reason why the words “prenuptial contract” are not specifically addressed in the Matrimonial Causes Act 1973, as amended. The only reference to marital contracts in that Act is that the court has an overriding discretion to alter any contract made before, during or after a marriage. When the Matrimonial Causes Act was enacted, divorce was considered unusual and applied to few. Now, regrettably, there is hardly a family in the land which has not, in some shape or form, had to face the reality that many marriages do not last for ever. The far-reaching changes to social norm over the years are themselves simply a sufficient base to call for reform of the law. Indeed, as Sir Paul Coleridge, a former High Court family judge, said in his address to a family law conference in 2013, when the MCA was 40 years old: “Since family law is intended to regulate family life as it is lived now and not in the distant past, it follows that the current divorce and financial provision law … is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a wholly different society and way of life … The Matrimonial Causes Act 1973 with all its layers of crustacean growth needs to be humanely killed off and given a decent burial and the heroic efforts of the Supreme Court to maintain the life support system need to stop. The Act has, quite simply, had its day”. That speech was made in 2013. The following year, two changes were made which are worth taking note of. The first was that the appeal system from the High Court judge to the Court of Appeal was altered, and the refusal of leave, quite frequently from a single family judge, was the end of the road. Prior to that, there was the ability to appeal against the refusal of leave and to be heard, quite frequently, by a non-family judge. The Supreme Court, which is largely composed of non-family judges, was the “life support system” to the Act to which Sir Paul Coleridge refers, but getting there now is almost impossible, as family judges in the Court of Appeal are marking their own homework, and that is not capable of challenge. The second change was the Law Commission’s report, referred to by the noble Baroness, Lady Deech, Matrimonial Property, Needs and Agreements. It made recommendations for the introduction of binding nuptial agreements, which were referred to as “qualifying nuptial agreements”. These would be enforceable contracts that would not be subject to the scrutiny of the court, which would require certain procedural safeguards to be met, and which, importantly, could not be used to contract out of an obligation to meet financial needs. The 2014 report was commissioned as a direct consequence of the Supreme Court’s plea in Radmacher v Granatino—a case that I am all too familiar with, having been on the losing side—for Parliament to legislate in respect of these contracts. Absent the implementation of guidance by Parliament in respect of nuptial agreements, we are back with the discretion of the tribunal. The clear message of Granatino that prenuptial contracts should be enforceable unless it would be unfair for them not to be leaves the fairness to the trial judge, which is totally discretionary. No prenuptial contract is able to prohibit children’s maintenance—the court has an overriding jurisdiction over that which cannot be ousted. As a consequence of Granatino, there are many more prenuptial agreements in circulation, all stacking up, and when a divorce occurs there is an increasing number of cases awaiting adjudication—hence my five cases mentioned earlier. The very reason for entering a prenuptial contract is removed when the period of a marriage is the same as the length it takes to adjudicate the financial relief on divorce. People are entitled to know how the judges are going to exercise their discretion. The Law Commission provides enormous help in this respect and its recommendations should be enacted. The uncertainty of outcome would be reduced and the already overburdened courts would be relieved of some unnecessary work. The idea that prenuptial contracts favour only the rich is not accurate. When a person of significant wealth is intending to get married and asks how their assets could be protected, the correct answer is: by not marrying. The financially weaker party is then left with no rights whatever, except when there are children of the family, when a claim under Schedule 1 to the Children Act is all that is available to them. If, however, the law of enforceability of prenuptial contracts was more certain, there would be a greater incentive to enter into marriage. Wearing my other hat as a patron of the Marriage Foundation, it is also in the interests of society that people are encouraged to get married in circumstances where evidence points to the fact that married relationships are more likely to endure, for the benefit of any children, than if the parties were mere cohabitees. In other countries, it is commonplace on marriage for nuptial contracts to be entered into—typically community property or separation of property. The courts now have to grapple with the enforceability of these contracts. I ask the Minister, rather than being distracted by the temptation to consider overall reform of the Matrimonial Causes Act 1973, to concentrate on the reasons why the Government cannot deal with this isolated stand-alone area of the law, which, as the noble Baroness, Lady Deech, says, is oven-ready. It is akin to having a leaking roof and water dripping down the walls, but not having the roof fixed until you have decided what colour to paint the walls. Eventually, the delay will cause the roof to collapse, with all the collateral damage that causes. The development of ancillary relief is complex and there are no easy answers, as the most recent Law Commission paper has set out. Every Government seem to encourage alternative dispute resolutions, but these do not work when the law in itself is uncertain. All Governments shy away from grappling with this issue. I have received significant support in my mission to make the law clearer from mediators, mostly notably Helen Adam, who attended a panel convened by Siobhan Baillie to consider reform of the current law. Helen, in exasperation, recently sent me a message. After conducting a mediation, she had sent her clients—parents of three young children—to solicitors for advice, where they were given entirely different advice and so were unable to settle in mediation. Those parents face the prospect of further costs, stress and acrimony in their legal proceedings ahead, none of which is in the interests of their young children. She says this happens all too regularly. In her last plea she writes: “Maybe we need to get the press involved to get a Bates v the Post Office-type documentary, to bring this scandalous legal situation into the public domain”. Delay is in nobody’s interests, least of all the minor children of the family, where the previous Government sought to expedite the dissolution of marriage by no-fault divorce without the promised follow-up of enacting any reform in relation to financial relief. Until the money is sorted out, the parents are not free to move forwards. At least if the law on prenups was more certain, mediators would have more success when dealing with these. This brings me to my last point, which is the purpose of Parliament. I fully endorse the Lady Chief Justice’s protection of the judiciary: it can only enforce the existing law, and the appeal process is what protects litigants. When Parliament is invited by the Supreme Court to legislate, as it was in Granatino, and 14 years later nothing has happened, we have to look to ourselves in shame. I conclude with two pleas. First, please can the Government address this matter and fix the leaking roof? There will be plenty of time to discuss the colour of the walls, but that too should not be pushed off too far into the long grass. Secondly, until this is resolved, please can the Government reinstate the appeal process by restoring the right to appeal against the refusal of leave by the Court of Appeal, so that the life-support system of the Supreme Court referred to by Sir Paul Coleridge is more accessible?

16:16:00

My Lords, I am grateful to the noble Baroness, Lady Deech, for bringing the debate on this Motion and for raising such fundamentally important issues, which she set out so clearly. I also acknowledge with respect the considerable wisdom and insight of the noble Baroness, Lady Shackleton, on these matters. It has been my personal privilege to prepare many couples for marriage over the years. It is a hopeful time, where couples seek to express unconditional love and trust, and commit to share all aspects of their life, both at the time and looking to the future, whatever it may hold. I believe it would be detrimental for all parties if prenuptial agreements were to become a normal part of preparing for marriage, whether religious or not—although I entirely acknowledge the arguments in favour of these agreements, particularly the clarity they provide in financial matters, especially where there are pre-existing children, and their role in reducing litigation upon divorce. However, I urge the House to reflect on prenuptial agreements’ broader implications for the institution of marriage, its gift to wider society and the potential consequences for the financially weaker parties. Historically, marriage has been regarded as more than just a contractual arrangement between two individuals. If we are to put matrimonial nuptial agreements into statute, it may appear as if we are saying to couples who come to marry that, to save themselves legal costs and uncertainty, they should include in their preparations a plan also for their divorce. Furthermore, although advocates argue that prenuptial agreements encourage fairness and discourage litigation, we must be mindful of the power imbalances that may arise, which can be emotional, psychological and, of course, financial. The reality is that such agreements often favour the wealthier party, leaving the financially weaker spouse—often women—at a disadvantage. When there is some sort of pressure to marry, individuals may agree to terms that are significantly unfair or that fail to consider future circumstances, such as career sacrifices, child-rearing responsibilities, unexpected financial hardships or even unexpected windfalls. Therefore, I believe the courts should retain a measure of discretion to ensure that any final financial agreement is equitable, rather than being bound by contracts that may no longer reflect the realities of the marriage or divorce. For this reason, of the models set out by the Law Commission in December 2024, I would favour that which codifies the current case law while retaining wider judicial discretion. Although it is true that courts currently have the authority to assess and override prenuptial agreements in cases of significant inequality, there remains a risk that their increasing normalisation may lead to undue pressure on prospective spouses to sign away their rights without fully comprehending the longer-term, more serious consequences. For example, many prenuptial agreements incorporate acknowledgements that each party is content with the financial information that has been provided and does not wish to ask further questions before signing. Yet I am sure it is likely, at times, that one partner may be anxious about asking further questions in a way that may imply a lack of trust and so risk undermining the relationship at a time when the focus, in preparing for marriage, is very much orientated towards joyful expectation. Marriage is not merely an economic transaction. It is, above all a covenant: something good and beautiful. We must ensure that our legal framework continues to foster the values of partnership and protection for the vulnerable. Whatever our views across this House, I hope we can acknowledge the value of good preparation for marriage, drawing on the very large range of excellent resources and support that is available. That includes support offered by organisations such as Care for the Family, one of a number of charities that have dedicated themselves in recent years to supporting churches in particular across the country as they offer support to those preparing for marriage, whether they are part of the church or not. In addition, they go on offering resources to support relationships at later stages of family life and in parenting—especially when challenges inevitably arise and the strain on the relationship increases. Let us, as a House, in the midst of this debate, value the work that is done by many individuals, organisations and faith-based communities to support preparing for marriage. Therefore, in conclusion, I urge the House to approach the matter of nuptial agreements with some caution, ensuring that any legal recognition that they receive does not come at the cost of transparent fairness and justice and the true spirit of marriage, as a most ancient and sacred institution given by God that, at its best, benefits the whole of society.

16:22:00

My Lords, I too am a patron of the Marriage Foundation and a former family judge who tried a lot of financial cases. I have to say to the noble Baroness, Lady Shackleton, that I am one of two Court of Appeal judges who managed to persuade them that there should be leave to appeal in family cases. But my experience in the past was that Court of Appeal family judges fairly regularly disagreed with High Court judges. So it is not a question of marking your own work: you are marking the work of somebody else in the same subject—therefore, with a great deal of experience. I am very much in support of the idea of prenups becoming part of legislation. I am delighted that the noble Baroness, Lady Deech, has brought this debate. It is useful that we discuss this, and I hope it will put some degree of pressure on the Government to start thinking seriously about doing something useful. I entirely agree with the suggestion that there is no reason why this relatively simple part could not become part of the law without waiting for a much more complex situation in relation to the rest of family financial affairs—which, as has already been said, can be very complicated. However, I have two concerns. I respectfully disagree with the right reverend Prelate on the idea that there should not be legislation, but he has made a significant point. There are two issues about which I would be concerned if prenups became part of the law without a degree of discretion for the court. Perhaps, as a judge, I have more faith in the judiciary than either of the noble Baronesses, Lady Deech and Lady Shackleton: that does not entirely surprise me. The two issues are these. The first is the point so well made by the right reverend Prelate: when the agreement is made, there has to be transparency. You have to put on the table what you have and what you do not have because, from cases I have tried, I know that debts can be as important as assets. Before you enter an agreement, you need to know the state of affairs of both the intending spouses. If one side does not come clean, and it becomes obvious on divorce that there has been non-disclosure and a serious lack of transparency—I am talking not about £10,000 but about millions—or, in a family that does not have much money, that one has money stowed away somewhere that has only just come to light, in such a situation, the judge must have a discretion to put the matter right. I do not see that discretion being applied in a case where the judge is satisfied that the prenup was entered into with both sides understanding what they were going into and with sufficient transparency for it to be fair at the moment of the agreement. As has been said, it is a contract, but it has to be a contract that can be put right by the judge in extremely unfair circumstances if one of the two spouses has not played fair. So I am looking not at fairness generally but at fairness in a lack of transparency. The second point that I am concerned about comes at the moment of divorce, or generally just after. There are circumstances which change dramatically: that was my experience when I tried cases. A couple starts marriage in a particular situation and, at the point of divorce, one of the spouses has an extreme change of circumstance. I am looking at illness. You may have a prenup that says that both of them have jobs with relatively equal incomes and neither of them has much in the way of assets, but then you get to a point, 30 or 40 years later, when one of them has multiple sclerosis and is unable to work. At that moment, are you to say that the prenup should apply to the wife, or indeed to the husband—because there is no shortage of wives who earn as much, more or even much more than their husbands? I happen to be one of those. I can see a situation in which my husband and I made an agreement, when we both started at the Bar with relatively similar incomes, and then I made much more money and became a senior judge and he got a serious illness and could not work. Would it be fair that he should not get a penny because that is what we agreed at the moment of marriage? In my view, there has to be some possibility for this to be looked at. I also look at another situation: if a couple had had reasonable assets when they married but then one of them went bankrupt. There are extreme situations. I am asking that the judge have a residual discretion to deal with those two instances: the moment of going into the agreement, and the moment when the agreement comes into force. I therefore do not entirely agree with the noble Baronesses, Lady Deech, or indeed the noble Baroness, Lady Shackleton, in wanting a prenup never to be changed. But I do see the idea that for the majority of people who enter into such a prenup, that should be the beginning and end of what their financial affairs should be.

16:30:00

My Lords, I congratulate the noble Baroness, Lady Deech, on securing this debate and on her persistence on this issue in the face of government inactivity. It is also a great privilege to follow the noble and learned Baroness, Lady Butler-Sloss, with her immense experience of these cases. I declare an interest as a practising barrister, and, although not one primarily concerned with family law, one who has a forthcoming case which concerns a prenuptial agreement entered into by a husband and wife, the issue being whether or not the parties are to be bound by that agreement. The burden of what I wish to say is that it is high time Parliament intervened. The result of intervention should be fewer cases such as the one I have just referred to. There is evidence, referred to by the noble Baroness, Lady Shackleton, that the courts are being increasingly troubled where one party or another to a marriage does not wish to be bound by a prenup, claiming that they did not enter into the agreement freely or that the circumstances have changed since the marriage, making it inequitable to rely on the agreement. The law in relation to what used to be called “ancillary relief” on divorce gives the court a very wide discretion but gives it no clear guidelines as to how to apply that discretion. The Matrimonial Causes Act 1973 simply lists the vast number of factors that have to be taken into consideration. The result has been that the courts themselves have developed the law, which, although it has avoided some cases reaching court which might otherwise have done so, still leaves a considerable degree of uncertainty as to the outcome of proceedings that might be contested. I have here this very large volume from the Law Commission—the scoping paper referred to by a number of noble Lords. The Law Commission produced a clear and helpful summary of the issues, as one would expect, but did not come to any very firm conclusions as to what the appropriate legislative response to the uncertainty created by this wide discretion should be. The Law Commission, however, has made some very clear suggestions for reform of prenuptial agreements. For a prenup to be “a qualifying nuptial agreement” it should be contractually valid on ordinary principles, it should be entered into by way of a deed, there should be disclosure of material financial information by both sides, and both sides should have independent legal advice. There is an additional proposal that such an agreement would not qualify if made less than 28 or 21 days before the marriage ceremony. I agree with all the other proposals, but I am slightly doubtful about the 28-day cooling off period. However, that is the sort of detail that could be ironed out during the passage of any Bill through Parliament. Why has there been no response to what is now a series of quite old recommendations by the Law Commission? In 2014 the then relevant Minister, Simon Hughes, said there was insufficient time because there was to be a general election in 2015. I was a Minister in the MoJ at the time, although not one with responsibility for this particular area of the law, but I remember answering a question in your Lordships’ House and giving a similar answer to the one Simon Hughes had given. The answer given, on the other hand, by the noble and learned Lord, Lord Bellamy, to a similar query in 2022 was that the Government were considering the matter in the context of a wider review. In the meantime, as we have heard, the courts took some significant steps to clarify the position in the case of Radmacher v Granatino. The Supreme Court had decided by a majority of eight to one, and I quote one particular passage which summarises their view: “It would be natural to infer that parties who entered in enter into an antenuptial agreement to which English law is likely to be applied intend that effect should be given to it”. The dissenting voice was the formidable one of the noble and learned Baroness, Lady Hale. On reading her judgment, she seems to have been concerned, understandably, that there was a possibility of a significant change in roles post marriage, which would mean that the agreement was unfair. I note the comments of the noble and learned Baroness, Lady Butler-Sloss, about what might be regarded as a very significant change in circumstances. As I apprehend what she was suggesting, it is not meant to be a general discretion but a discretion in very exceptional circumstances. The risk, of course, of having a discretion at all is that it can mean we are back to square one, as it were. If there is to be that discretion, I would respectfully suggest that it be severely circumscribed and limited. My submission to the Government is that the time for action has come. We are still four and a half years away from a general election; there is thus plenty of time for this sort of legislation. I acknowledge that law reform is not always high on the list of priorities of a Government trying to make a significant change in this country, but surely the time has come to respond. The Minister may not be a particular expert in this field—although he has great expertise in other fields, of course—but I ask him to take back to the department the concern already expressed in this debate, and that I suspect will be expressed in speeches after mine, and ask his colleagues to prioritise reform in this area as soon as possible. The response of the noble and learned Lord, Lord Bellamy, that reform should be part of a “wider picture”, is not one that I suggest the Government should make. It is very tempting to say, “Well, if you are going to address changes to financial provision on divorce, you want to tackle all the issues in one go”. But in the light of the ambivalence in the suggestions in the scoping report about more generally legislating, it would be most unwise simply to wait and produce legislation that covers all the uncertainty. It would be much more sensible, I suggest, to grapple with this relatively simple change to the law, which would be consistent with the law in continental Europe and probably in Scotland. It would also reflect, largely, the desires of those who consider entering into a prenup. It is worth reminding noble Lords that it would not be compulsory to enter into a prenup, but where the parties have significant assets and are concerned about the future, particularly in the case of second marriages, as the noble Baroness, Lady Deech, said, the absence of legislation runs the risk of dissuading people from getting married at all—and not all of them, of course, are in your Lordships’ House. When I last looked, public policy remains in favour of marriage; it even finds reflection in the European Convention on Human Rights. I suggest to the Government that the time has come for action.

16:38:00

My Lords, I, too, thank the noble Baroness, Lady Deech, for bringing forward this important debate at the early stages of this Government; as the noble Lord, Lord Faulks, just pointed out, they have four and a half years to go. As my noble friend Lady Shackleton pointed out, this matter is always kicked into the long grass; it is therefore a good time for it to be brought out. The Law Commission made recommendations in 2014, which it is currently reviewing, but calls to make properly drafted prenuptial agreements binding were made long before then, including by noble and learned Lords in this House, so it is hard to be optimistic about change, but, as a non-lawyer I want to take a slightly different tack. As an aside, I am in very good company with and have empathy for another non-lawyer, the noble Lord, Lord Timpson, who is preparing to respond to many legal eminences. This Government have said that, for them to act, any measures will need to further one or more of their five missions. My argument is that making romantic relationships a little less romantic meets the opportunity mission test. Binding prenuptial agreements would, albeit indirectly, boost opportunity for children to do better. That is quite a leap, so I will elaborate. They would strengthen marriage by making it more intentional and less risky, thereby, it is to be hoped, helping to increase marriage rates throughout society. According to Louise Perry, more marriage would be better for women too, as they are the vulnerable party in our informal hook-up culture, where unplanned pregnancy means they are often left, literally, holding the baby. Crucially, more marriage means more children benefit from the stability that the commitment of marriage brings to family life. Children of married parents are considerably less likely to experience their own relationship breakdown. This was emphasised by the Centre for Social Justice in its 2009 Family Law Review. Its starting point, unusually but importantly, was that any reform of family law needed to support family stability and address the prevailing culture of family breakdown. Then and now, this is the underlying social emergency at the root of and driving so many other social issues. Some 44% of children do not grow up with both their parents. Children who endure family breakdown are around twice as likely to experience homelessness, alcoholism and mental health issues; to get into trouble with the police or spend time in prison; to underachieve in education; not to live with the other parent of their children, and to become a teenage parent themselves. Marriage makes a difference. The Millennium Cohort Study found that 88% of married parents were still together when their child was five years old compared to only 67% of parents who were cohabiting when their child was born. More starkly, children born to cohabiting parents were almost three times more likely not to be living with both their parents when they were five years old compared to children born to married parents. Attributing this difference in stability to marriage is often dismissed in favour of other coexisting factors that make people more likely to form lasting relationships, such as higher levels of income or education, but low-income married couples are significantly more stable than low-income cohabitees. How relationships are structured matters. Anthropologically speaking, the whole effort of getting married, the ritual itself, the decision to commit and the explicit public nature of that commitment, and even the financial investment in marking that change of relationship status, are all qualitatively different from the slide into cohabitation which is very common. Psychologists such as Professors Scott Stanley and Galena Rhoades at the University of Denver have extensively studied how sliding into cohabitation differs from deciding to get married and how that affects relationship durability. As we have heard, the noble and learned Baroness, Lady Hale, in her minority judgment in Radmacher v Granatino, which tested the binding nature of a prenup, spoke of the importance of maintaining a distinction between marriage and cohabitation. She also said that Parliament, not judges, needed to make the law in this area. In 1998, the last Labour Government published Supporting Families, the UK’s first ever Green Paper on family policy, and made a strong case for doing this. It is worth repeating what they said then: “allowing couples, either before or during their marriage, to make written agreements dealing with their financial affairs which would be legally binding on divorce … could give people more choice and allow them to take more responsibility for ordering their own lives. It could help them to build a solid foundation for their marriage by encouraging them to look at the financial issues they may face as husband and wife and reach agreement before they get married”. This speaks of the greater intentionality that prenuptial arrangements bring to marriage; people think about the future. Indeed, this measure was included in the section in the policy proposals on supporting marriage—still a very valid aim of social policy. It pointed out: “Providing greater security on property matters in this way could make it more likely that some people would marry, rather than simply live together … Nuptial agreements could also have the effect of protecting the children of first marriages, who can often be overlooked at the time of a second marriage—or a second divorce”. In its Family Law Review, the CSJ points out: “England and Wales is unusual across Westernised family law jurisdictions in not having binding pre-marriage agreements … or other marital agreements”. While prenuptial agreements should not be mandated or normative, it is responsible to consider what a couple would want to happen in future circumstances. Arguably, when the couple are in flush of premarital romance and well disposed towards each other, that is a good time to think about how finances should pan out if things do not work out. Of course, some strongly hold that premarital agreements plan for failure, reflect distrust and undermine the commitment of marriage. I would argue, as Labour did in 1998, that this intentionality and ability to plan address the realism of the future. Moreover, it is ironic that while it is possible to have a cohabitation agreement to protect assets if a relationship fails, married couples in England and Wales are subject to the very uncertain outcomes of our current divorce law, which can create many perverse incentives. The CSJ lists many other advantages of making prenups legally binding, such as the greater security that they give to those re-entering marriage who have been scarred by divorce, lower legal costs, fewer delays as judges have not the need to determine arrangements from scratch, and international norms which mean that prenups are expected to have legal force. Disadvantages include the difficulties of predicting future events and including these in the agreement. The vulnerable, weaker party—or the one who is keener to marry—may feel obliged to sign despite possible downsides for them. This leads to the issue of how much residual discretion, which we have heard about, should be allowed to the courts not to treat prenups as binding in particular cases. The more the discretion, the greater the opportunity for fairness and justice, yet the greater the risk that agreements are not binding at all. The lesser the discretion, the more unfair outcomes there will be, even though there is fairness in upholding agreements. Hence, in 1998, the Government permitted a narrow discretionary factor of “significant injustice”. Judge-made law could elaborate the circumstances in which “significant injustice” may be found. In conclusion, I ask the Minister whether this Government will make the prevention of parental relationship breakdown a key part of their mission to break down barriers to opportunity—and of course of their child poverty strategy. Poverty is a consequence of family breakdown as well as a cause of it. Bolstering marriage is essential, as the last Labour Government realised. Perhaps counterintuitively, making prenups binding is a low-cost tool in the box to do that.

16:48:00

My Lords, I have practised in family law as a barrister for many years and latterly have worked as a family judge. I do not find it altogether easy to recognise the picture of how the law now works, as portrayed by the noble Baroness, Lady Deech, but never mind; that is a debate for another day. Given that the median duration of marriages ending in divorce is now just under 13 years, it is a good time to assess the effect on law and practice of the important decision of the Supreme Court in Radmacher 15 years ago. Typically, the parties to prenuptial agreements may legitimately wish to ring-fence inherited or previously acquired assets or, as the noble Baroness, Lady Shackleton, said, wish to ensure provision for children of previous relationships. Not surprisingly, agreements are now said to be popular with the farming community, with their particularly illiquid assets. All who enter into such agreements will naturally wish to avoid the costs and hazards of litigation. The perception and use of prenuptial agreements have developed remarkably. They were felt by some to devalue a view of marriage for life, distastefully requiring the involvement of lawyers in what was supposed to be the happy period leading up to the marriage ceremony. They used to be seen as required only by wealthy older men after several unsuccessful trips around the matrimonial course, who wanted to protect themselves in case the latest candidate for matrimony turned out to be a gold-digger—at least, from the man’s point of view. They were also seen as disadvantaging women, who were asked to waive some or all of what they might expect to receive if the marriage later ended in divorce, and as allowing parties to contract out of the responsibility to meet each other’s needs. In a classic American case, the very wealthy husband, 25 years older than the wife, presented her with an agreement only a few hours before the marriage ceremony, and threatened to cancel the marriage if she did not sign. She had sparse knowledge of his finances and did not have any independent advice, only a session with a lawyer selected by the husband. That lawyer, to his credit, advised her not to sign. However, in spite of that advice, she signed the agreement and the marriage went ahead. Thirteen years and two children later, there was a divorce and costly litigation across two state jurisdictions. The decision of the Supreme Court in Radmacher has reduced the prospect of such a scenario in the United Kingdom. Rushed agreements with limited legal advice and limited disclosure, particularly if they appear unfair and very different from what the court might otherwise order, cannot expect to be upheld, and in reality can be worse than having no agreement at all. The Law Commission’s later well-researched and reasoned recommendations in 2014 included the crucial requirements for there to be independent legal advice for each party and sufficient financial disclosure, and for the agreement to be completed at least 28 days before the wedding. Although those recommendations are not yet in statute, they undoubtedly already reflect current good practice and have helped to make agreements more popular and effective. I noted with some surprise the doubt expressed by the noble Lord, Lord Faulks, questioning the need for a cooling-off period of 28 days. However, there is a need to protect those who get married in a fever, to quote the old song. The remaining area of controversy concerns whether and in what circumstances the court might go beyond an agreement, freely and properly entered into, that would otherwise be expected to be binding upon the parties. There is a clear distinction between agreements unfair from the outset and agreements that may later operate unfairly if access to legal remedies is severely restricted. It was recommended by the commission that the court’s jurisdiction to make provision for needs should not be ousted by qualifying agreements, so that no party would be left unjustifiably without resources following separation. To that extent, the mere fact of an agreement cannot make fair what may otherwise appear or become particularly unfair. The Law Commission said there was little evidence of how agreements operate in practice and that it would be helpful to have more relevant information about how popular they are, how they are treated in litigation and how many cases settle on the basis of agreements. I suggest that it would also be helpful to have reliable overall evidence of the difference between the outcomes that prenups produce and the outcomes that the court would otherwise direct. I suspect that the majority of prenups are not seen by the courts because the couples involved manage to stay married and leave the agreement in a drawer, and that many other agreements are seen by the courts only because the parties simply wish to comply with it by submitting it in support of an agreed order, to reflect what has been agreed. It is likely that those prenups that are challenged, at least by those with enough money to do so, come before the court only because of inadequate drafting or unforeseen changes in circumstances, or because of an irresistible dispute about jurisdiction if the agreement was made outside England and Wales. However, I seriously question the number of challenges that was suggested by the noble Baroness, Lady Deech, but statistics will prove one or other of us right or wrong. Carefully prepared agreements, although unromantic and transactional, can provide couples with a sense of security and certainty, reducing some of the acrimony and expense in the event of later permanent separation, and reducing the temptation to divert or conceal assets ahead of a divorce. Specialist legal practitioners can now help parties to achieve fair, realistic and civilised agreements, capable of later revision, that the courts will uphold. Indeed, if in doubt, the parties can now ask the court for an early decision as to whether the agreement is determinative of their financial affairs. Nevertheless, there remain parties who sign agreements and marry, having ignored, rejected or not understood good legal advice that they could or would be better off marrying without the agreement. The Law Commission described the argument for autonomy as strong but as raising concerns that some may still enter an agreement unwillingly or with unrealistic optimism. The chances of that are not likely to be much diminished by any legislation. As the right reverend Prelate suggested, contractual autonomy has to be seen in the peculiarly emotional context of these agreements. It is clearly premature to anticipate a final report by the Law Commission on the much wider question of whether and how substantial reform of financial remedies legislation should be undertaken, and any decision by the Government on that. Paragraph 7.98 of the commission’s recent scoping report suggests that, if there is not to be major change, its recommendations relating to agreements could be implemented straightaway, but, if major changes are expected, the recommendations about agreements will need to be reconsidered. We should be grateful to the noble Baroness for making us think hard about that. If there are major wholesale changes, many existing agreements could well need postnuptial revision and renegotiation. An important component of any good advice is what a court might do in the absence of a prenup to protect the economically weaker party. Until it is clear what the law is to be in the foreseeable future, it will be hard to give satisfactory advice to those who need it about what might happen at a much later date. If reforms are undertaken piecemeal, with prenups legislated for in advance of substantive law reforms, there is a risk that some agreements based on the substantive law in force when the agreement was reached would become unfair, and so would either produce an unfair result or have to be renegotiated, if the parties were willing to do so, failing which they might have to go to court. However, I accept that, to some extent, that risk exists irrespective of whether the law relating to prenups is reformed as the noble Baroness has proposed, and irrespective of changes that may be further down the track Accordingly, meanwhile, until clarity is reached and a decision is made about how we should proceed, I suggest that the approach that has developed following Radmacher now works well, and that the family courts can and should be trusted to continue to deal with individual cases as required.

16:58:00

My Lords, I too am grateful to the noble Baroness, Lady Deech, for bringing today’s debate and for her tenacity on this issue and the wider issues of family law reform. With the Law Commission’s recent report, Celebrating Marriage: A New Weddings Law, and its ongoing work on the issue of financial remedies on divorce or dissolution, which includes reviewing its own 2014 report on the matter, it seems we might be on the cusp of much legislative work in this area. So I too would be grateful to know whether His Majesty’s Government’s position, which I agree with, remains that all these issues about financial remedies should be dealt with together. If there is limited legislative time, which is often what the Government say, I reiterate the point I have made at Oral Questions that the greatest injustice to be dealt with in this area is currently those people entering a religious wedding ceremony that, when conducted, turns out not to be valid under UK law. For participants, especially women, even the current remedies of Section 25 of the MCA are but a dream. Many are left destitute, particularly if they then have adult children, where there is no Schedule 1 claim. I accept that that law is not as well baked, or oven ready, as the noble Baroness, Lady Deech, said. However, I do think that for those women it should have priority. On the subject of today’s debate, I wonder whether the comment by a previous Minister, my noble and learned friend Lord Bellamy, that prenuptials are the province of a “small and privileged cohort” is correct. As the noble Baroness, Lady Deech, has outlined, and if the Co-op Legal Services statistics are in any way accurate, about a fifth of married couples may have such an arrangement at the moment. If you google “prenuptial agreement” in the UK, the AI answer is that, as per the case of Radmacher v Granatino, your prenup will be relevant as long as you entered into it freely with full disclosure, you have legal advice, and it is not unfair. I accept the comments made by the noble Baroness, Lady Shackleton, about the breadth of the discretion for “unfair”. That will be comforting to read if, say, your prenup entitles you only to a return plane ticket to the Philippines—only you and not any of your children. Yes, this has been a case. All the reform suggestions outlined would present a remedy for this. I presume it would be prima facie evidence of duress under the proposal outlined by the noble Baroness, Lady Deech. But many people will just look now to AI, so a law change will change that answer when someone looks up a prenuptial agreement. Can I be assured by His Majesty’s Government that any reforms will have a comprehensive publicity campaign so that the public, particularly vulnerable groups, understand any change? One has only to look at how many people think common-law marriage exists as a legal concept to see how necessary awareness is. I also ask His Majesty’s Government to look at what is covered in the citizenship curriculum. Surely young people need to know and understand an institution, and its legal ramifications, that so many will eventually enter. Despite much Law Commission work, there remain areas of the prenuptial jurisdiction that have not yet been discovered or considered. It is one of the privileges of being in your Lordships’ House that you are approached to raise issues that the Government may need to consider. Unfortunately for this nation of pet lovers and owners, the law still treats pets as mere chattels. They are treated as property for the purposes of Section 25. There are currently about 13 million dogs and about 10 million cats as pets, so it is actually not a minority issue. The United Kingdom is becoming something of an outlier legally in relation to this. I am sure the noble Lord, Lord Meston, from his role at the International Academy of Family Lawyers, will be aware of this as well. The recent decision of District Judge Crisp in FI v DO on 20 December last year in the Manchester family court outlined what might become a test for other cases to decide, as in that case, who gets custody of the dog. But the most interesting part of that judgment was this: “The dog is a chattel. At times it seemed to me that I was in the realms of a Children Act application which featured the dog when the wife was cross examined about the dog’s welfare and shared care arrangements. I set this out because I have no doubt that if this feature could have been agreed other matters may have been able to be agreed”. Such, of course, was the emotional attachment that this couple had to the dog that they were in court. A change in the law could avoid some litigation, I would hope. On 28 January this year, District Judge Hatvany put a blog piece titled Of Dogs and Divorce on the Financial Remedies Journal website, which said: “Our legal system has a reputation for being the finest on the planet. Yet in court, the legal test for who gets to keep the family dog is the same as that for any other inanimate content of the family home. The roots of this absurdity lie in the common law, which insists that pets are properly no different in principle from furniture even though we all know that this does not reflect reality. This probably stems back to mediaeval times when dogs were kept for hunting and cats for mousing, but in the 21st century it’s laughably outdated. In other jurisdictions, courts are beginning to recognise that pets aren’t just property. There seems to be no effective mechanism in English courts, however, for resolving the issue of who gets the family dog”. I am informed that this niche professional journal got a large response to this blog piece on pets. When I was weighing up whether to sign up to speak on this Motion in such eminent company, I was reassured that “You and Yours” on Radio 4 this Monday had the subject matter of “pet-nups”. Do His Majesty’s Government have a view on pets in prenuptial agreements and on whether they should continue to be considered chattels? Is the committee that your Lordships established under the Animal Welfare (Sentience) Act 2022 looking at this matter? This is happening in other jurisdictions. Colombia amended its law in 2016 and its case law recognises that emotional bonds to animals within families do not equate to making animals equivalent to humans. Proposals are apparently afoot to amend the Italian legal code to “regulate the custody of family pets upon separation or divorce”, and New York has a best interests test on deciding the custody of a companion animal. In many of these changes, the jurisprudence stems from a recognition of the sentience of animals, so it looks like the Animal Welfare (Sentience) Act 2022 might inadvertently have started us on this journey. These changes also recognise humans’ emotional connection to animals and move away from the division that anything non-human is merely an object. I hope His Majesty’s Government will look at these comparators to see whether they have affected prenuptial arrangements in those jurisdictions. I thank the working group on pets and divorce, barrister Sarah Lucy Cooper and solicitor Estella Newbold-Brown for their work on this and for drawing this to my attention. This group also has the support of the previously mentioned High Court judge, Sir Nicholas Mostyn, and the Kennel Club. Will His Majesty’s Government agree to meet them to understand the solutions in this area of the law and how often it is an issue in proceedings? In principle, I share the sentiments of the noble and learned Baroness, Lady Hale, in her vigorous dissenting judgment in Radmacher. I also note the comments of the right reverend Prelate that this is a covenant, not a contract. It reminds me so much of the wisdom we used to receive from the late Lord Sacks in explaining to us the difference between covenants and contracts. I am pleased to learn that there would be an irreducible minimum here: a spouse would not be left so destitute as to be dependent on public funds and an agreement should not be allowed to leave the burden on the taxpayer rather than on the other spouse who has means. As I conclude, I realise that I may have gone from the sublime to the ridiculous—from women who are left destitute and without remedy as they are not legally married to the custody of family pets—but this reflects the variation and breadth of issues that the breakdown of a marriage or civil partnership can reveal and the issues that the Government need to consider when legislating for a prenuptial, or pet-nuptial, agreement.

17:08:00

My Lords, I am grateful to my noble friend Lady Deech for her tenacity in campaigning for the reform of this area of family law. Unlike my distinguished friends next to me, my noble friend Lord Meston and my noble and learned friend Lady Butler-Sloss, I am not a family law judge. I have simply been a divorce lawyer in South Africa, practising under the corpus juris civilis in Roman-Dutch law. I shall not speak for 11 minutes and will keep my comments brief. When we debated my noble friend Lady Deech’s Private Member’s Bill, the Divorce (Financial Provision) Bill, way back in 2018, we were led at the time to believe that, following the Law Commission report, prenuptial agreements would soon be placed on a statutory footing and be enforceable. That was subject, of course, to both parties entering the agreement without duress, it being fair, it being reasonable and both parties receiving independent legal advice before signing the agreement. Sadly, seven years later, prenuptial agreements are still not enforced by courts in England and Wales, and the can is constantly being kicked down the road. If I can revert to my experience of being a divorce lawyer in South Africa, where we refer to prenuptial agreements as antenuptial agreements, they have worked very well for decades. It does pose a problem when South Africans move across to the United Kingdom: if a couple were, sadly, to divorce in this country, they would not be able to get divorced with that prenuptial agreement. I am also very familiar with the Radmacher v Granatino case in 2010, which many noble Lords have mentioned, and I am also cognisant of the fact that London has the reputation of now being the divorce capital of the world. Clearly, public attitudes have changed, and the public is now broadly supportive of prenups. The time has come to simplify divorce processes, reduce the emotional strain and, with that, reduce the costs. Simpler, streamlined procedures would benefit both divorcing parties as well as the legal system. While many lawyers advocate for reforms to make the process more efficient, I accept that opinions differ, based on personal practice, experience and client consultations. My noble and learned friend Lady Butler-Sloss made a very powerful point about change in circumstances, and to that degree I support post-nuptial agreements. Clearly, there needs to be a balance between efficiency, fairness and adaptability. For prenups to be enforceable, there needs to be full disclosure and transparency of both parties’ assets and liabilities and the financial condition of both parties. Also, both parties need to have independent legal advice, and have it weeks—if not possibly months—before they get married. Prenups should be signed by both parties voluntarily, and the terms should be free, fair and reasonable. Pivotal to any reform must be the consideration of children’s needs, ensuring that the financial provisions for the welfare and needs of children are at the very centre of any settlement. To this end, maintenance provisions for children born in the course of marriage would need to be determined separately to the prenup. I would also encourage promotion of financial disputes outside of the courts, through what are called ADRs, including mediation and collaborative law, aiming to reduce the burden on the legal system and the emotional stress of both parties. In the context of prenuptial agreements, inheritance, gifts and premarital property can generally be included or excluded based on specific terms of both parties. I do not have the answer to this, and it reinforces the need for disclosure and transparency. I also agree with the point made by the noble Baroness, Lady Berridge, that we need to promote public awareness of these changes, ensuring that individuals are aware of their rights and obligations within a marriage or cohabitation context. The bottom line is that huge amounts of money are being spent on negotiating financial settlements in acrimonious divorces—I speak as one who has been divorced—which often ignore the best interests in the marriage. I am totally in favour of providing safeguards and protections, but the time has come to simplify the proceedings and bring in more certainty and more enforceability. We constantly hear from Ministers at the Dispatch Box that, “All options are being considered, and a response will be given in due course”. I hope that, when the Minister winds up the debate, we can get a clearer timetable for prenuptial agreements to be finally incorporated into family law and be enforceable.

17:14:00

My Lords, what a very interesting debate. I congratulate the noble Baroness, Lady Deech, on securing it. I have no legal training. I am not sure if I am the only person speaking in this debate who is not a lawyer or a judge of some sort, but I am speaking here on human grounds and common sense, and as a bitter divorcee. It is a bit sad—I agree with the right reverend Prelate—to think that marriage, which is, or was, a lifetime commitment to another until death do them part, has now to enable a division of chattels, should that marriage end in divorce, even before entering the said marriage, but we are where we are. In 2023, there were 76,089 divorces in the UK, which is about 38% of marriages ending in divorce. This is down from 113,505 divorces in 2021, when 46% of marriages ended in divorce. So we should welcome anything which makes this challenging process better, safer, fairer, easier and less traumatic. Even though, currently, the courts almost always uphold prenups so long as they are fair, who knows what outcome you will get? Based on the rate of divorce and the contributions from noble Lords who have spoken in the debate today, it seems to me that the time has come for the legitimate status of prenups to be enacted. There are clear pros, as identified by many of your Lordships who have spoken so far, but I am concerned that the negatives have not been erased. What happens when a prenup—which now will have the rule of law on its side—is unfairly drawn but is now a legal contract agreed to by both parties? The noble Baroness referred to that. How will we know the status of the individual agreeing or signing, whether they were coerced, or whether they knew the consequence? I am particularly concerned about women because, in general, it is still women who earn less, even if they work full-time; it is still women who give up work for the early years after having a baby; it is still women who lose their place in promotions due to absence; and it is still women who are not employed, despite employers theoretically not being allowed to ask a young woman if she intends to have children. On the other hand, prenups do offer financial protection and ensure that a woman’s personal assets from inheritance or business ownership of investments remain protected in divorce. They can shield a woman from debt, including her husband’s debt, after divorce. They can clarify how finances will be handled in the marriage, and they can support career sacrifices where the woman gives up work to look after the children while the husband furthers his career. Legal battles can be reduced. I am definitely a bit “on the one hand, on the other hand”, but I do come to a conclusion in favour of prenups being legalised. A fair prenup that takes everything into consideration might be a very good thing, but my concern is even more agitated by the formation of the prenup itself. They may be poorly negotiated, particularly if one partner is wealthy or more powerful. Some prenups waive or limit alimony, which is problematic when a woman has sacrificed her career for marriage. The current protection under default marital laws might protect her better than a prenup, which might restrict her rights. She might be pressurised into signing a prenup—again, if the partner is wealthy or legally savvy, as are many noble Lords who have spoken today. Women would have to be able to have independent legal representation and to afford it, and that might be a challenge as well. Therefore, if prenups are to become legal, I would want a number of safeguards against those negatives, because it appeared to me from my research for this debate that a prenup may favour whoever negotiates it better or who can afford the better legal adviser. Of course, the key to the success of this is to have strong legal representation and not sign anything under pressure. In the Radmacher v Granatino case, which has been raised by many noble Lords in the House, and with which I am now familiar, the prenup was actually upheld, but it set the precedent for what courts consider fair or unfair. Then there are the costs: the cost of obtaining legal advice for a prenuptial agreement in the UK obviously varies, based on the complexity of the assets involved, the reputation and location of the solicitor, and the specific needs of the couple. For straightforward cases with minimal assets, there may be fixed fees starting from £500. Agreements of moderate complexity—those involving more detailed financial arrangements—may cost between £2,000 and £4,000. For high-complexity cases—those with intricate assets, business interests or international considerations—costs can start at £5,000, without a ceiling. Then there is asset complexity; the more complex the financial situation, the more time and expertise will be required to draft the agreement. In my experience —forgive me for saying this—lawyers always find extra things to charge for. The other issues are legal representation, as both parties need independent legal advice, which doubles the costs; negotiation time, as extended negotiations or revisions can increase fees; and geographical location, as solicitor fees vary depending on where they are in the UK. Thankfully, some platforms are coming along that offer prenuptial agreement services at a fixed fee of £1,500—the total for both parties—aiming to make it more affordable and accessible. Each member of the couple will have to consult with a qualified family law solicitor to obtain a precise quote tailored to specific circumstances. Costs are significant, but, obviously, if this is to become legal, a well-drafted prenuptial agreement providing clarity could save considerable expenses, as has been mentioned, where divorces can cost a fortune. As it stands, prenups that would or should be thrown out are those that leave one party in financial hardship; those that were signed under duress, without legal advice or with hidden or misrepresented finances; and those where time has changed the circumstances in which the prenup was agreed. We have not discussed many of the soft challenges. They include the potential for a prenup to undermine trust in a marriage; the sense that the couple feels that it is a bit like planning for a divorce—which, in this day and age, in my view is quite wise; the potential to create a power imbalance; the fact that it can be emotionally hurtful; and the idea that it might look and feel like an insurance policy. On the other hand, prenups can strengthen trust, encourage open communication, prevent future conflict, strengthen a relationship by setting out clear expectations, protect both partners fairly and show maturity and responsibility. In summation, if prenups are to become legal entities, which I believe they should, they must have some indispensable clauses: on full financial disclosure; on independent legal advice; on no coercion or duress; on asset protection and separation; on debt liability; on spousal maintenance; on inheritance and family assets; and on future children. There should also be a sunset clause ensuring a revisiting of a prenup after a certain number of years. As has been said, they should also be signed at least 28 days before a wedding. In conclusion, if a prenup is written one-sidedly, the wealthier or more powerful partner will benefit. However, if it is fair and negotiated well, both parties can benefit by protecting personal assets while ensuring financial fairness. That is what we and the Government must aim for. I am much persuaded by the arguments of the noble Baroness, Lady Deech. It is time to make prenups legal.

17:22:00

My Lords, I thank the noble Baroness, Lady Deech, for securing this debate. I begin with the advantage, shared with the Minister, of never having practised in the area of family law; accordingly, we can both bring a fresh eye to this long-running saga. I find myself almost entirely in agreement with the observations made by the noble Baroness, Lady Deech, particularly on the need to bring forward suitable statutory provision for prenuptial contracts—and I use that word advisedly. I also agree with the noble Baroness, Lady Shackleton, who followed the noble Baroness, Lady Deech, on her point about the scope of a prenuptial agreement and its inability to forbid or exclude child maintenance. I entirely agree with the point made by the noble Lord, Lord St John of Bletso, that, clearly, children and their maintenance should not be part of such prenuptial agreements. There should be separate provision for the maintenance of children, when it is required, and that is reflected in, for example, the law of Scotland—which I will come on to address in a different context—where there is express provision for a periodic allowance for children up to a certain age that cannot be excluded by any prenuptial agreement. The right reverend Prelate the Bishop of Southwell pointed out that of course marriage is not just an economic transaction. But, as the noble Lord, Lord Farmer, made clear, those entering into matrimony need to take responsibility for the financial consequences of marriage. Accordingly, there is no reason why we should not look at the economic aspects of that relationship and the way in which it is going to be addressed. While supporting prenuptial agreements on a statutory footing, the noble and learned Baroness, Lady Butler-Sloss, expressed the view that there should be some means of addressing changes in circumstances. I cannot find myself in agreement with that. It seems to me that we would be merely exchanging one set of discretions for another—a point the noble Lord, Lord Faulks, touched upon. At present, the court has very wide discretion. I am not sure that replacing that with a narrower discretion is the appropriate way forward. The noble Lord, Lord Meston, has the advantage on me with regard to his scope of family law. But I cannot find myself agreeing with his inclination towards the status quo. It does seem to me that the time has come for action. Indeed, the time for action has passed. I agree with the noble Baroness, Lady Berridge, on the matter of awareness, but I will not seek to elaborate on the issue of chattels. I leave that to others to consider. I also agree with the noble Baroness, Lady Featherstone, that, if we are to put in place a statutory basis for prenuptial agreements, we need to have certain safeguards. There is no compelling logic to a person leaving a marriage wealthier than when they entered it. I do not agree with the reference made by the noble Lord, Lord Meston, to some expectation upon divorce. I do not see why that should be taken into account. A prenuptial agreement is neither unique nor, in our present social position, to be regarded as unconscionable. It is an example of what is known to the law as a contract. A contract made between two competent and consenting persons should be enforced in the absence of fraud, coercion or misrepresentation. On the point made by the noble and learned Baroness, Lady Butler-Sloss, if there is material non-disclosure, that should be grounds for voiding any such agreement. Adults entering a relationship should be free to decide for themselves the consequences and terms on which they may terminate that relationship. The same logic applies here as would apply to other forms of business or professional relationship, albeit acknowledging —as the right reverend Prelate pointed out—that marriage is not just an economic transaction. Parties should be entitled to agree that their existing wealth should never form part of what is termed “matrimonial property”. Parties anticipating their respective contributions to the common wealth during a marriage should be entitled to agree how their matrimonial property should be dealt with in the event of divorce. At present, the law of England and Wales is a muddle of uncertainty, fed by discretion. Since 2010, we have been told that a prenuptial agreement may be enforced if regarded as fair—but, fair, we are told, at the time it is being implemented: that is, at the time of divorce, taking into account many changes in circumstances. That is part of the problem, because anyone who has entered into a prenuptial agreement, with which they are unhappy many years later, will simply say, “Well, it was fair at the time, but I don’t think it’s fair now”—thus, recourse to the courts, to litigation and to legal costs. That temptation to challenge will always be there and ultimately will only benefit the lawyers. If I leased a car for five years, I could ask whether at the time of the lease the contract was fair. But to apply that test five years later, when the vehicle has lost its bloom, has become less reliable and is inclined to break down—rather like some marriages—seems inappropriate, in my submission. In the law of Scotland, a prenuptial agreement is treated as what it is: a contract. There is a statutory test of fairness and reasonableness, but it is applied to the contract at the time it was entered into, which is both logical and consistent with legal theory. Section 16 of the Family Law (Scotland) Act states that the court may set aside or vary such an agreement if it was not fair and reasonable at the time it was entered into. A modest statutory amendment could bring England and Wales into line with the more developed and logical jurisprudence of Scotland. I therefore invite the Minister to indicate whether, and indeed when, the Government will address this issue, which has been outstanding now for more than 14 years.

17:31:00

My Lords, I begin by thanking the noble Baroness, Lady Deech, for securing this important and timely debate about a topic that has a real impact on people’s lives. I also thank the noble Baroness for taking the time to talk to me last week, and I thank noble Lords for the important issues they have raised today and for their kindness to me. I am participating in this debate on behalf of my noble friend Lord Ponsonby. I must therefore declare at the outset that I am not an expert on these matters, save that my wife and I celebrated our 28th wedding anniversary last week. As the noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of Southwell and Nottingham set out so clearly in their remarks, marriage is a hugely important institution and the foundation of many happy relationships. That said, marriages and civil partnerships can of course break down. I wish to recognise, as many do, that divorce can be one of the most stressful and difficult times in people’s lives. I will start with some context. As your Lordships will know, it is almost three years since our divorce law underwent its most significant change in half a century. The introduction of no-fault divorce now allows couples to end their marriage or civil partnership without having to blame each other. No-fault divorce has removed the legal requirement for conflict. As Juliet Harvey, then national chair of Resolution, said, one year after no-fault divorce was introduced: “This historic change marked the end of the blame game for divorcing couples”. It is perhaps fitting that the Bill introducing these measures passed with cross-party support both here and in the other place, gaining Royal Assent on 25 June 2020. At this point I must reference the noble and learned Lord, Lord Keen, who played a crucial role in taking the Bill through this House. From speaking with officials in my department, I know how much they enjoyed working with him on this legislation. I know that the noble Baronesses, Lady Deech and Lady Shackleton, take the view that no-fault divorce is just one part of the divorce reform story and remain concerned about the law that relates to a divorcing couple’s finances. This leads me to the specifics of the Motion tabled by the noble Baroness, Lady Deech, which asks the House to take note of the law relating to prenups. I am aware that many of your Lordships will know the legal background. However, for the benefit of those who may be less familiar, including myself a week ago, I will give an overview of how the law in this area has developed. In the 19th century, the courts concluded that agreements relating to a couple’s future hypothetical separation were invalid. This was because at the time, it was a public policy concern that these sorts of agreements might encourage separation or divorce. As the noble Baronesses, Lady Deech and Lady Shackleton, mentioned, in the landmark 2010 case of Radmacher v Granatino, the Supreme Court decided that a couple should be held to their prenup and post-nup agreement, if it is freely entered into, with a full appreciation of the circumstances, unless it would be unfair to do so. The current law continues as set out in the Radmacher case. Central to developing law in this area, the courts have considered how to protect the finances of those who are vulnerable, including children, and how to make sure that vulnerable individuals are not coerced into signing prenups. Your Lordships will of course be aware that the previous Government asked the Law Commission to conduct a review of the law on prenup and post-nup agreements. Its report was published in 2014 and recommended the introduction of “qualifying nuptial agreements”. These agreements would be enforced by the courts in specific circumstances. However, couples would not be able to use them to prevent each other providing for each other’s financial needs, including those of their children. We have come back into government just over 10 years after the Law Commission’s report on this subject was published. The report regrettably never received a full response from the previous Government. I know this has been a source of frustration to the noble Baroness, Lady Deech, and the noble Lords, Lord St John and Lord Faulks, and I can assure your Lordships that this Government are looking into the issue with utmost care. It would be remiss of me not to mention at this stage another report that the previous Government did not respond to, which was the Law Commission’s 2022 report on wedding reform. Again, I assure noble Lords that this Government are looking into this issue, including in relation to humanist weddings, and will provide an update in the coming months. Since 2014, the Law Commission has however done further work on the law relating to financial settlements following divorce. In December last year, it published an important scoping paper, which outlined its assessment that there are problems with the current law, and possible ways the law could be fundamentally reformed. The Law Commission further outlined how changing the law on prenups and post-nups could form part of wider financial remedies reform. I know that my noble friend Lord Ponsonby has been reviewing the recent report and will be setting out next steps in due course. I also wish to assure your Lordships that the Government have an ambitious reform agenda for unmarried couples. This includes delivering our manifesto commitment to strengthen rights and protections for cohabitants. We are working on delivering this manifesto commitment, and plan to launch a consultation later in the year. The noble Baroness, Lady Berridge, will see that cohabitation reform will address some of the issues raised in respect of religious-only marriage. I am afraid that, on the subject of pets in the family, it is not my pet subject. The noble Lord, Lord St John, was right to express the importance of mediation, and may be pleased to hear that we have also committed to funding the mediation voucher scheme until at least March 2026. This scheme has helped over 37,000 families to date. Mediation helps couples take a less adversarial approach to making agreements following separation. I have heard the calls in this debate, including from the noble Baronesses, Lady Deech and Lady Shackleton, and the noble Lord, Lord Faulks, that prenups be dealt with separately from wider reform and that we legislate for them now. The Law Commission does not see prenups as a discrete issue, but, as I have heard today, some noble Lords disagree. The Government will take all these views in the round before setting out their position. It may be helpful if I set out for your Lordships what the Law Commission says in its 2024 report. It says that any reform on the basis of its 2014 prenup and post-nup proposals would depend on the type of wider financial reforms that could be put in place. The Law Commission takes this view for a couple of reasons. First, it is of the view that it would be unnecessarily complicated to enact its 2014 proposals now, if future reforms would apply different rules for prenups and post-nups that would come into being at a later date. This would result in different law applying to different agreements, depending on the timing of those agreements being put in place. Secondly, the 2014 proposals for prenups and post-nups were based on the central role of financial needs in the current law. The Law Commission said that any legislation is likely to need to be unpicked if there is future wider reform of financial remedies. I absolutely assure your Lordships that the Government are considering the Law Commission’s 2024 report and the issue of prenups in this context. This debate is invaluable and timely. I know that my noble friend Lord Ponsonby and his team of officials will take on board the range of perspectives heard today in the Chamber when considering next steps. In fact, I am looking forward to meeting him on Monday, and I reassure the noble Lord, Lord Faulks, that I will take his comments back to the department, and maybe to the colleagues he knew very well when he was there. I thank the noble and learned Baroness, Lady Butler-Sloss for her contribution to this debate. Given her lifetime of service to family justice, including as President of the Family Division, it is important to have her careful and considered input on this topic today. I am grateful to the noble and learned Baroness for highlighting the need for fairness and transparency for prenups. The Law Commission’s 2014 report recommended that a couple must have received important information about each other’s finances when making a prenup. We will certainly be looking into this recommendation in depth. The Law Commission’s 2014 report addressed the issue of the family court having the discretion to intervene if there has been a major change in circumstances, by recommending that a couple would not be able to contract out of providing for each other’s needs on divorce. This is a very important issue, one that I assure noble Lords that my noble friend Lord Ponsonby will think very carefully about. I thank the noble Lord, Lord Meston, for raising important questions about the formation of prenups. In particular, there is the question that the noble and learned Baroness, Lady Butler-Sloss, also raised about fairness for a spouse who may have signed a prenup without anticipating what the future might hold. No young couple getting married can precisely predict the future. They may win the lottery, or their health may deteriorate to a point where they can no longer work. No one can be certain about how life will pan out. The Law Commission’s 2014 report considered this issue and recommended qualifying nuptial agreements. These types of prenups would not allow a couple to contract out of meeting each other’s financial needs on divorce. The Law Commission recommended this type of prenup to ensure that needs that have arisen because of unforeseen circumstances are not ignored by the court just because there is a prenup in place. As the noble and learned Lord, Lord Keen, is aware, the definition of “needs” in financial cases on divorce has been the subject of much case law. As I previously stated, the Law Commission does not see prenups as a discrete issue. However, the Government will take on board all the views your Lordships have raised today in considering next steps. I thank the noble Lord, Lord Farmer, for his contribution to this debate. I know how important these issues are to him and acknowledge his continued efforts to make sure that my department works across government to ensure the best outcomes for families who are separating. As I have already said, and as was raised by the noble Baroness, Lady Shackleton, and the noble Lord, Lord Faulks, marriage is very important in our society and is the foundation of many successful relationships. I listened with interest to the noble Lord’s perspective that prenups would boost the marriage institution, and I am sure that my noble friend Lord Ponsonby will be interested in this point too. I will write to the noble Baroness, Lady Shackleton, on her question about appeals. I thank the noble Baroness, Lady Featherstone, and the right reverend Prelate for raising the important issue of the impacts of prenups on women. This is an important policy question. I am aware that the Law Commission considered this specific point in its 2014 report and made recommendations in relation to protecting spouses’ financial needs when they divorce. The safeguard recommended was that parties cannot contract out of meeting each other’s needs when they divorce. I further thank the noble Lord, Lord Farmer, for his suggestion that the prevention of parental breakdown should form part of the Government’s opportunity mission. The Government already do much to support separating couples. The Department for Work and Pensions is delivering the Reducing Parental Conflict programme to reduce parental conflict and improve children’s outcomes. Through this programme, funding is made available to local authorities in England that work in partnership with a range of experts from relationship and family charities. The Government will now consider these recommendations in the context of the Law Commission’s 2024 financial remedies review. The noble Baronesses, Lady Deech and Lady Shackleton, rightly expressed the need to reduce court delays. These delays have a significant impact on families, and we are committed to improving court timeliness. In 2014, the Law Commission said that its recommendations for prenups and post-nups may reduce the number of financial provision cases going before the courts in general. We will look at this further as part of our consideration of the Law Commission’s 2024 report. Your Lordships will, I am sure, be pleased to know that the Government are already taking action to reduce delays in financial cases. We are supporting the Family Procedure Rule Committee to launch a new express pilot for financial cases in particular regions. This pilot will reduce the number of court hearings in lower-value financial cases from three to two. As part of this, dispute resolution would be the central focus of the first hearing. The noble Baroness, Lady Deech, will, I hope, be pleased to know that the Government continue to explore the use of technologies such as AI to improve the efficiency of courts and legal processes. The Ministry of Justice has established a new justice AI unit, led by the department’s first AI officer, to develop a comprehensive AI strategy for the department and its agencies. I confirm that our chief AI officer is a very popular person for everybody to meet. The Law Commission says, in its 2024 report, that any reform on the basis of its 2014 prenup and post-nup proposals would depend on the types of wider financial reforms. The Law Commission does not, therefore, see prenups as a discrete issue. As I have heard today, some noble Lords, including the noble Lord, Lord Meston, disagree. The Government will take all these views in the round before setting out their position. Today’s debate serves as a reminder that the law relating to prenups raises complex questions about the role that the courts and couples should take in the division of financial assets when divorcing. I understand the frustrations of the noble Baroness, Lady Deech, that the previous Government had little enthusiasm to address prenups. I hope my repeated assurances in this debate that this Government are carefully considering the Law Commission’s December report have been helpful. As referenced earlier, I know that my noble friend Lord Ponsonby has been reviewing the recent report and will be setting out our views in due course. It has been extremely helpful to have this debate. In fact, it is the first time that I have heard the words “romance” and “love” in a debate. I have thoroughly enjoyed my time dealing with family justice matters and I will take what I have learned back to my noble friend Lord Ponsonby on Monday. I hope he thinks I have done this topic justice—if noble Lords will excuse the pun. I hope I have covered all the points raised today and that your Lordships will forgive me if I have not. If anything has been missed, I will write on those issues. In closing, I reiterate my thanks to the noble Baroness for tabling this Motion. It is because this issue is so important, both for couples and their children, that the Government must take the time to get this right.

17:45:00

My Lords, as a mere academic lawyer, I am grateful to and impressed by all the real lawyers who brought their wisdom to bear in this debate. I say to the Government that their commendable concern for financial prudence ought to guide them in this respect: there is no doubt that couples and courts will be spared unnecessary expense if they go ahead and legislate. I will pick up a number of points, and I hope noble Lords will forgive me if I do not address all of them, bearing in mind the time. I was moved to hear the right reverend Prelate talk about marriage, but it is not its financial elements and prenups that have degraded—as he might say—marriage to the level at which he and others have expressed concern. Marriage has been emptied of all its former aspirations by changes in the law. The recent change in divorce law, while welcomed by many, means that one can get a divorce without presenting any reasons and relatively quickly. That sort of change must do more to affect a couple’s entry or not into marriage than anything about the finances that may face them when that marriage comes to an end. I wish, like the right reverend Prelate and others do, that divorce was not so common, but it is so we have to be realistic. The burden of many impoverished divorcees falls on the state anyway. No amount of contracts or provision for settling financial matters in the court takes us away from the fact that many couples have few assets and that their divorce means two sets of housing rather than one, an increased reliance on state benefits and that whatever is paid as maintenance is clawed back in universal credit. The presence or not of prenups will do little to affect that financial element. I absolutely agree with all noble Lords who have expressed concern for children. Children cannot and should not be part of prenups or post-nups, because those are agreements between two adults. I do not think we have shown enough concern for children. I have read many judgments concerning wealthy couples, running to many dozens of pages, and on the last half-page is a throwaway comment about so much per month or week for the children and their school fees. That is it. There is no concern about how the huge amounts expended on legal fees detract from the children or general concern about how many fathers—it is usually fathers—are allowed to walk away from their responsibilities to their children without any recourse and without state child maintenance legislation having much effect at all. It is high time we took more concern for children’s financial situation in divorce. I do not think that we should worry too much about the cost of making a prenup, as the noble Baroness, Lady Featherstone, spelled out, because those costs are but a pinprick compared to what people have to spend when they enter into an acrimonious divorce which needs to go to court. Nor should we be concerned about this convoluted argument that the Law Commission put forward that, if the overall law were to change, one would have to go back and alter the prenup law. After all, the law relating to money and divorce keeps on changing. Every time there is a Supreme Court judgment or a Court of Appeal judgment, things change profoundly and might require couples to revisit their prenup, so I do not think that is a firm argument. I urge the Government once again to go ahead and enact prenups because that will save money all round and it is a discrete issue, as most people have said. In fact, virtually everyone here this evening has said that prenups should be enacted statutorily. As for cohabitation, if one changes the law relating to cohabiting couples now without reforming the law relating to financial provision, then cohabiting couples going to court will find themselves caught up in the same network of inefficient, uncertain financial provision as existing married couples do. There is no reason to delay statutory enactment of prenups law. The Minister—whichever Minister—will find in the Ministry of Justice files and files gathering dust. I have dealt with seven different Ministers over this issue over several decades and somewhere there is foot-dragging which is no longer justified. The Government want to save money, to help couples and to support children. Now is the time to do that, so I end by urging the Minister to go back to the ministry and tell them to get on with it.