4 hours Ago By The Telegraph
should be made legally binding despite fears they could hit stay-at-home wives, the Law Commission has said. The commission, which advises ministers on legal reforms, has proposed an overhaul of matrimonial law arguing that the decades-old rules for determining how financial assets are split after divorce are unpredictable and “promote dispute”. Judges have tended to split the combined “matrimonial” wealth of divorcing partners equally, even if one partner is the breadwinner, under the principle that each spouse, irrespective of their role, made an .
But they have broad discretion on how to interpret the law, including which assets are deemed to be “non-matrimonial”. – documents signed before or during the marriage specifying how assets are to be carved up if it ends – have been recognised by the courts since a 2010 Supreme Court ruling involving Katrin Radmacher, , but they are not automatically binding. In the case, Ms Radmacher and hundreds of millions of pounds controlled by her family from Nicolas Granatino, her former husband and City banker turned academic.
Ms Radmacher, 55, after Mr Granatino claimed the contract was unfair because he had not realised the true extent of his wife’s fortune. The commission said the law should be changed so that such prenuptial agreements were legally binding provided they had been entered into freely without duress and met the needs of the spouses and any children. But senior judges and academics warned such a change in the law could disadvantage the less wealthy partners in a marriage – particularly women – who might sacrifice their careers to bring up a family.
It was a point raised by Lady Hale, the Supreme Court judge, in a strongly worded statement of dissent to the judgment backing the prenup arrangement in the Radmacher case. She said the ruling was unfair to the poorer partner in a marriage. Prof Sharon Thompson, a family law expert at Cardiff University, warned “optimism bias” often meant people with fewer assets might enter marriage without believing it would end in divorce and sign prenups that .
“Though nobody has a crystal ball to know the future impact of a prenup, the harm caused by an agreement that prevents any claim on the wealthy party’s assets is predictable,” she wrote in The Conversation. “For example, the less wealthy spouse, who is usually the wife, will more likely make career sacrifices to look after children, or to care for elderly parents. “The damage this does to spouses’ earning capacity can be irreparable, so that even a spouse who was financially independent when signing the prenup can still end up in an economically vulnerable position on divorce.
” Conversely, she cited the example of a wealthy doctor who was the breadwinner in the family while his wife stayed at home. “He might regret [the prenup] if, while he is out at work his wife stays at home and writes the next Harry Potter novel,” she said. “He supported her financially to write the book but will not get a penny of the profits on divorce.
Put simply, there is no way of knowing how circumstances will change after the prenup is signed.” She said it was critical that any legislation had safeguards that took account of the needs of spouses at the time of divorce..
