Judges yesterday ruled in favour of giving more weight to pre-nuptial agreements, but the decision does not mean ‘pre-nups’ are legally binding in England and Wales.
A pre-nup is a contract made between a couple before marriage which says who will get what if they split up.
Currently pre-nups are not part of English family law and making them so could encourage divorce, critics say.
The case was heard in the Supreme Court where justices ruled by a margin of eight to one. Baroness Hale was the one dissenter.
She criticised the outcome saying it was damaging to marriage. Baroness Hale also said the ruling was “inconsistent with the continued importance attached to the status of marriage in English law”.
She said: “Marriage still counts for something in the law of this country and long may it continue to do so”.
Baroness Hale commented that her fellow judges were treating married couples in the same way as unmarried people and added it was “wrong to equate married with unmarried parenthood”.
Before the General Election the Tories vowed to make pre-nups legally binding but so far no legislation has been proposed.
The Law Commission, which reviews and recommends laws, is currently reviewing pre-nups and its findings are expected in 2012.
Suzanne Kingston, head of the Family Law Department at Dawsons Solicitors said yesterday’s decision “stops short of making pre-nups legally binding and talks of ensuring fairness on a case by case basis”.
The decision was in a case of the break up of a marriage between a German heiress, Katrin Radmacher, and a French millionaire, Nicolas Granatino. They have two children.
The couple signed a pre-nup in 1998 agreeing that, should the marriage end, they would not make financial claims against each other.
The court ruled that Mr Granatino will receive £1 million in the divorce settlement, less than a fifth of what he was initially awarded in 2008 by a High Court judge.
Writing in the Daily Mail, commentator Bel Mooney bemoaned pre-nups, asking, “isn’t it the case that a prenuptial agreement exists only because one or both parties presume — or even expect — that the marriage will fail at some point?
“It’s a negative approach to life that reduces the most sacred of human vows to a commodity, subject to barter and price increases like everything else in the marketplace”, she said.
Last year the Conservatives said they wanted to make pre-nups binding.
Tory MP and the then shadow justice minister Henry Bellingham told the BBC that the Tories wanted to bring in “a fairly wide ranging divorce law reform bill”.
He added, “I’m very keen that part of it will include ‘pre-nups’ and make them enforceable in law, subject to very strict safeguards”.
Although there was no family law bill announced in the last Queen’s speech, the coalition Government wants to increase the use of mediation for divorcing couples. Mediation is not a reconciliation programme, rather it greases the tracks to divorce.
Divorce would be the first thing children would ban if they ruled the world, according to a 2008 poll of 1,600 children.