Contextualising the Law on Pre-Nuptial Agreements in England: A Comparative Study and a Proposal for Reform

Over ten years ago, Lady Hale stated ‘there is not much doubt that the law of marital agreements is in a mess.’1 However, with no reforms being implemented, the ‘messy law’ subsists. This article analyses the English legal approach and compares it with the Australian one to discuss whether statutory change to make pre-nuptial agreements (PNAs) legally binding is needed. It will argue against the stereotype that PNAs are only suitable for uberwealthy individuals and instead claim that PNAs should be considered by anyone wishing to protect their assets. First, the conventional objections to PNAs and the transformation of traditional attitudes are explored; demonstrating that such objections are no longer influential. This is followed by a discussion of English case law explaining the difficulties posed in applying precedent. The Australian law is then examined, outlining the effects that binding financial agreements have had for the public and practitioners. Finally, a proposal for reform by the Law Commission is evaluated, in tandem with the Australian law, to suggest what change to the English approach could look like. The article concludes that PNAs should be made legally binding, to respect the autonomy of individuals and to provide practitioners with clarity when advising clients, but that safeguards are paramount in this reform process to minimise the risks associated with the formation of PNAs.