President of the Supreme Court against automatic enforcement of prenups

During a recent speech given by Lady Hale at the International Centre for Family Law, the President of the Supreme Court departed from convention in order to air her concerns (which I share – along with the vast majority of family law practitioners) about controversial draft legislation introduced by Baroness Deech. The draft bill has made its way through the House of Lords and has had its first reading in the House of Commons.

Whilst Lady Hale praises many of the legal developments in recent years much needed by the modern family (such as same sex marriage, no fault divorce, and the Law Commission proposals for surrogacy reform – for more on this see the blog post of my colleague Lauren Burbridge “Surrogacy – pitfalls and proposals”) she heavily criticised the key aims of Baroness Deech’s draft bill.

The bill itself seeks to introduce a much stricter financial regime on divorce, such as capping spousal maintenance to 5 years in nearly all cases. With regards to prenups, the legislation if enacted would mean that they are upheld to the letter, regardless of whether the document meets the needs of both parties. As Lady Hale points out, this is a significant departure from the Law Commission’s recommendations made in 2014 (following extensive research and professional consultation) that nuptial agreements, in order to be enforceable, should have to meet needs.

Here is a link to the full speech, which is well worth a read:

She said: 'I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions. But I question how one size fits all can possible meet the justice of the case or fulfill the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases.'