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It's About Time England Caught Up On Pre-Nups

05/02/2014 13:09 GMT | Updated 06/04/2014 10:59 BST

The announcement that English couples will be able to rely on the details of prenuptial agreements in divorce courts has made the headlines, but in truth it's a development that's long overdue.

For one thing, England is late to this particular party. In Scotland, prenuptial agreements have always been contracts under common law, but the Family Law Act of 1985 took this a step further by confirming that such agreements could be overturned only on very specific and limited grounds.

The same is broadly true for the rest of Europe, and many countries throughout the world. The news that England is to enshrine this in law is therefore very welcome for several reasons, not least of which is bringing it into line with its Scottish and European neighbours.

For one thing, while prenups are often thought of as a way for one spouse to stop the conniving ex making off with the family jewels, that's not really the point of the agreements. Normally it's agreed that wealth or assets acquired after the marriage are included in a 'pot', which is then divided up in the event of a split.

That's a very practical, if not especially romantic, consideration of modern life. Second marriages are relatively common nowadays, and often take place at a time of life when one spouse or the other will have amassed assets or wealth of some kind. A prenup can stipulate those assets aren't part of the common 'pot', but everything which comes afterwards will be divided among the partners in the event of a divorce.

At the moment, English prenups have an uncertain status and are considered on a case by case basis, at the discretion of the judge. The Law Commission, which reviews and recommends reform of the law in England and Wales, will publish a report later this month which will outline a number of proposals, including the legal recognition of prenups. The paper is expected to recommend that both parties take legal advice before entering into a prenup, and that neither will be left in need after a divorce.

This is all very sensible stuff, especially when you consider that 42 per cent of marriages in England and Wales end in divorce. In Scotland, almost 9500 divorces were granted in 2011-12. Prenups are not intended to leave one partner destitute as punishment for their role in the break-up; nor are they meant to act as chains of servitude to prevent one partner from leaving the other if there's a good reason to do so.

What a good prenup should mean is that, where a divorce is the only real option, the whole process is handled more quickly, with less fighting, mess and acrimony. If the terms are pre-agreed and legally binding, both parties should have a clearer idea of where they stand and as a result, there should be less to quarrel over. That's especially important where children are involved.

Another quirk presented by the current position in England can be seen where there are jurisdictional disputes with each jurisdiction having a different approach to prenups. I've advised on divorces on both sides of the Scottish and English border, and it can become very complicated and distressing for everyone concerned. Applying a consistent approach across the UK and Europe can only be a good thing.

The truth of the matter is this: divorce is an unpleasant business. It's a pretty cruel juxtaposition of legal procedure and human emotion. If the former can go at least some of the way towards easing the strain on the latter, then we should firmly welcome the proposals to - finally - consistently recognise prenuptial agreements in England.