THE BLOG

To Have and to Hold... a Pre-Nup

04/02/2014 11:52 GMT | Updated 05/04/2014 10:59 BST

The prenuptial agreement is often thought to be something of a modern invention, the preserve of celebrities and the very wealthy.

In fact, the use of pre-marital contracts reportedly stretches back to the Tudor king Edward IV, more than five centuries before Kanye West was demanding something similar in song.

However, even though the documents have gained in popularity in recent years and featured as critical issues in high profile court cases, they still do not have the full force of law, at least in England and Wales.

That could all be about to change. Later this month, the Law Commission is due to publish its recommendations on how the assets belonging to married couples should be divided when they divorce.

The Commission's proposals will mark the end of five years of research, consultation and deliberation. Over that time, the rates of both marriage and divorce have generally been in decline whilst the numbers of couples choosing to cohabit have continued to soar.

One theory advanced as to why individuals have chosen to live together but not wed is because of the financial cost of divorce. A number of large settlements, including the rumoured £220 million paid by the late Russian tycoon Boris Berezovsky to his ex-wife in 2011, have earned courts here the reputation of being "wife-friendly".

A key element of determining the nature of any settlement is, of course, establishing the needs of the less wealthy spouse. It has been argued that there is a lack of clarity about what those needs actually are, something that the Law Commission is set to issue guidance on.

I'm sure that certainty as a result of its inquiry would be welcomed by those who feel their marriages have collapsed beyond repair. Having clear principles which are easy to understand would, in my opinion, enable more couples to be able to resolve matrimonial disputes without needing to involve divorce lawyers.

The positive benefit would not only be felt in terms of maintenance, inconsistencies in which have caused spouses to 'race' each other to have divorces heard in those parts of the country which they believe may give them a favourable settlement, something reported on by my colleague Liz Cowell last year.

Couples would be able to enter into a marriage having already agreed in a prenup how their assets should be divided if they were later to divorce. That will only happen if people believe the documents are - to use a phrase - "worth the paper they're written on" and backed by legislation.

That prenuptial agreements are more commonly held is beyond question and something to which my colleagues in Pannone's Family department can attest.

It is arguable that their popularity in the UK is not in fact down to the likes of Catherine Zeta-Jones and her husband, Michael Douglas, or the tycoon Donald Trump but is principally due to a 2010 Supreme Court ruling in favour of a German heiress, Katrin Radmacher.

Since then, couples who are far from super-rich have recognised the value in simplifying the process of dividing what they own when they part, avoiding potential unpleasantness into the bargain.

Even before we learn what the Commission supports - and, importantly, how ministers react to its suggestions - we already know that there is a potential risk.

Attempts to provide clarity in Family law can sometimes create problems of their own. Take the pivotal ruling in the divorce of Martin and Pamela White for example.

Whereas the notion of equal division of marital assets that it introduced seems simple enough, it actually made the process rather more complex than might have been hoped by the Law Lords who handed down their judgement.

Any measures which provide certainty or rigidity could still be tested in the courts by spouses who might dig their heels in to determine just how far they might be able to push the legal boundaries.