The time will likely come when Pre-Nuptial Agreements will be binding upon husband and wife who enter into them. At present Pre-Nuptial Agreements are not binding. They are of a persuasive nature only. However, Resolution, a leading Family Organisation, has prepared and submitted to the Law Commission, its proposal for changes in the law upon Pre-Nuptial Agreements.

If, as and when these changes are implemented, the Court may regard any agreement in writing entered into between the parties to the marriage in contemplation of or after the marriage, for the purpose of regulating their affairs on the breakdown of the marriage as binding upon the parties and shall make an Order in the terms of the Agreement unless:-

a. The Agreement was entered into as a result of unfair pressure or unfair influence.

b. One or both parties did not have a reasonable opportunity to receive independent legal advice about the terms and effect of the Agreement.

c. One or both parties fail to provide substantially full and frank disclosure before the Agreement was made.

d. The Agreement was made fewer than 42 days before the marriage.

e. Enforcing the Agreement would cause substantial hardship to either party or to any minor child of the family.

Until recently it was obligatory upon both parties to receive independent legal advice about the terms and effect of the Agreement. That often caused hostility and, perhaps, in itself, was sufficient enough to discourage parties to a pending marriage to consider and enter into a Pre-Nuptial Agreement. However, this may now change. The obligation may now be only for the parties to have a reasonable opportunity to receive independent legal advice, thereby avoiding the absolute need to actually receive independent legal advice. However, it would still be necessary for it to be established that the Agreement was not entered into as a result of unfair pressure or unfair influence - a presumption of unfair pressure or unfair influence may easily arise if the financially weaker party to the Pre-Nuptial Agreement enters into that Agreement without actually receiving independent legal advice.

Pre-Nuptial Agreements are a complicated area of law. That is likely to remain the case."

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