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Public consultation explores future of pre-nups

15 March 2011

Should an unmarried couple be able to make a firm agreement about what should happen to their property if their relationship ends? Or should the law remain as it is: that the courts can decide if their agreement is enforceable?

The Law Commission is holding a consultation at Cardiff Law School tonight to ask the public their views on a range of potential options for reforming the law of pre-nuptial, post-nuptial and separation agreements.

Such agreements have attracted considerable attention in recent months, after the Supreme Court decision in Radmacher v Granatino [2010] prompted debate over the extent to which the law should recognise them.

The consultation will be introduced by the Law Commissioner for England and Wales, Professor Elizabeth Cooke. She will outline the questions raised in the Law Commission's consultation paper which was published in January this year, such as: does the current generation-old legislation provide the right basis for determining the effect of marital property agreements, or is a new approach needed? Could reform bring more autonomy and certainty to couples who want to enter into such agreements, while retaining sufficient safeguards to protect vulnerable spouses and children?

As it stands, the law does not allow a couple to prevent each other from asking the courts to decide how their property should be shared, and it is still down to the courts to decide on a case-by-case basis how much weight to give to any agreement made. This can offer important protection, but it can also lead to uncertainty and expensive litigation.

Professor Cooke, says: "Pre-nups are a topical issue. Under the current law the starting point for the resolution of financial division on divorce is the discretion of the court. Some feel that where couples have reached agreement, the courts should not be involved; yet the courts’ approach is primarily protective, and some feel that they should not be wholly excluded.

"Our consultation paper considers the arguments for and against reform and examines how a new approach might balance the desire of some couples to plot their own future with more certainty against the need for safeguards against exploitation and the creation of hardship. This is an issue that needs to be handled with care."

The Law Commission proposals will remain open for consultation until 11th April 2011. The full consultation paper can be viewed at



1. The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed. The aim of the Commission is to ensure that the law is fair, modern, simple and as cost-effective as possible.

2. Cardiff Law School is known internationally for its work across a wide range of research fields and for translating its research into information for policy-makers and practitioners. The most recent independent assessment of the quality of research in British universities ranked the School joint 7th in the UK. The School offers a range of undergraduate and postgraduate programmes and is home to the Centre for Professional Legal Studies, the leading provider of legal training in Wales. The Centre is one of only a handful of providers validated by the professional bodies (the Bar Standards Board and Solicitors Regulation Authority) to offer both the main vocational training courses for solicitors and barristers. Cardiff’s Legal Practice Course has consistently achieved the Solicitors Regulation Authority (formerly the Law Society) highest grade. Visit the Law School website at:

3. Cardiff University is recognised in independent government assessments as one of Britain’s leading teaching and research universities and is a member of the Russell Group of the UK’s most research intensive universities. Among its academic staff are two Nobel Laureates, including the winner of the 2007 Nobel Prize for Medicine, Professor Sir Martin Evans.
Founded by Royal Charter in 1883, today the University combines impressive modern facilities and a dynamic approach to teaching and research. The University’s breadth of expertise in research and research-led teaching encompasses: the humanities; the natural, physical, health, life and social sciences; engineering and technology; preparation for a wide range of professions; and a longstanding commitment to lifelong learning. Visit the University website at:

Georgina Thomson
Marketing and Communications Officer
Cardiff Law School
029 2087 5465

Phil Hodgson
Head of Communications
Law Commission
020 3334 0230