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Archive for the ‘pre-nuptial agreements’ Category

The Times today reports of the latest raft of recommendations from Baroness Deech over the status of pre-nup’s in English law. She calls our own system “anachronistic”, and refers to the approach taken on the Continent as an “immediate and attractive model for reform in this country”. Whilst I do agree that enforceable pre-nuptial agreements would save both parties time and money on divorce, for the time being I cannot see a situation where all discretion is taken away from the judges in our family courts. Baroness Deech seems to ignore the huge chasm that lies between our legal system and those across the Channel. France, for example, operates by a Code which affords little or no discretion to judges. By contrast, in England, we have always had a system where the judges have almost unfettered discretion in dividing property on divorce. Even the Court of Appeal’s decision in Radmacher was based on the judges being able to adopt a flexible approach that catered to the facts of the case.

For the moment, I cannot see a situation where absolutely all discretion is removed from judges in ancillary relief proceedings. So where would this leave pre-nup’s? Perhaps they should be added into s.25 of the Matrimonial Causes Act as a separate factor to be considered. That way, where they exist, they will always be considered, but we will still hold on to judicial discretion.

In any case, the Conservatives have pledged to make pre-nup’s binding when/if they form the next government, so perhaps Baroness Deech’s wish will come true…

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