Prenuptial Agreements

Baroness Berridge Excerpts

Thursday 27th February 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I too am grateful to the noble Baroness, Lady Deech, for bringing today’s debate and for her tenacity on this issue and the wider issues of family law reform.

With the Law Commission’s recent report, Celebrating Marriage: A New Weddings Law, and its ongoing work on the issue of financial remedies on divorce or dissolution, which includes reviewing its own 2014 report on the matter, it seems we might be on the cusp of much legislative work in this area. So I too would be grateful to know whether His Majesty’s Government’s position, which I agree with, remains that all these issues about financial remedies should be dealt with together. If there is limited legislative time, which is often what the Government say, I reiterate the point I have made at Oral Questions that the greatest injustice to be dealt with in this area is currently those people entering a religious wedding ceremony that, when conducted, turns out not to be valid under UK law.

For participants, especially women, even the current remedies of Section 25 of the MCA are but a dream. Many are left destitute, particularly if they then have adult children, where there is no Schedule 1 claim. I accept that that law is not as well baked, or oven ready, as the noble Baroness, Lady Deech, said. However, I do think that for those women it should have priority.

On the subject of today’s debate, I wonder whether the comment by a previous Minister, my noble and learned friend Lord Bellamy, that prenuptials are the province of a “small and privileged cohort” is correct. As the noble Baroness, Lady Deech, has outlined, and if the Co-op Legal Services statistics are in any way accurate, about a fifth of married couples may have such an arrangement at the moment.

If you google “prenuptial agreement” in the UK, the AI answer is that, as per the case of Radmacher v Granatino, your prenup will be relevant as long as you entered into it freely with full disclosure, you have legal advice, and it is not unfair. I accept the comments made by the noble Baroness, Lady Shackleton, about the breadth of the discretion for “unfair”. That will be comforting to read if, say, your prenup entitles you only to a return plane ticket to the Philippines—only you and not any of your children. Yes, this has been a case. All the reform suggestions outlined would present a remedy for this. I presume it would be prima facie evidence of duress under the proposal outlined by the noble Baroness, Lady Deech. But many people will just look now to AI, so a law change will change that answer when someone looks up a prenuptial agreement.

Can I be assured by His Majesty’s Government that any reforms will have a comprehensive publicity campaign so that the public, particularly vulnerable groups, understand any change? One has only to look at how many people think common-law marriage exists as a legal concept to see how necessary awareness is. I also ask His Majesty’s Government to look at what is covered in the citizenship curriculum. Surely young people need to know and understand an institution, and its legal ramifications, that so many will eventually enter.

Despite much Law Commission work, there remain areas of the prenuptial jurisdiction that have not yet been discovered or considered. It is one of the privileges of being in your Lordships’ House that you are approached to raise issues that the Government may need to consider. Unfortunately for this nation of pet lovers and owners, the law still treats pets as mere chattels. They are treated as property for the purposes of Section 25.

There are currently about 13 million dogs and about 10 million cats as pets, so it is actually not a minority issue. The United Kingdom is becoming something of an outlier legally in relation to this. I am sure the noble Lord, Lord Meston, from his role at the International Academy of Family Lawyers, will be aware of this as well. The recent decision of District Judge Crisp in FI v DO on 20 December last year in the Manchester family court outlined what might become a test for other cases to decide, as in that case, who gets custody of the dog.

But the most interesting part of that judgment was this:

“The dog is a chattel. At times it seemed to me that I was in the realms of a Children Act application which featured the dog when the wife was cross examined about the dog’s welfare and shared care arrangements. I set this out because I have no doubt that if this feature could have been agreed other matters may have been able to be agreed”.


Such, of course, was the emotional attachment that this couple had to the dog that they were in court. A change in the law could avoid some litigation, I would hope.

On 28 January this year, District Judge Hatvany put a blog piece titled Of Dogs and Divorce on the Financial Remedies Journal website, which said:

“Our legal system has a reputation for being the finest on the planet. Yet in court, the legal test for who gets to keep the family dog is the same as that for any other inanimate content of the family home. The roots of this absurdity lie in the common law, which insists that pets are properly no different in principle from furniture even though we all know that this does not reflect reality. This probably stems back to mediaeval times when dogs were kept for hunting and cats for mousing, but in the 21st century it’s laughably outdated. In other jurisdictions, courts are beginning to recognise that pets aren’t just property. There seems to be no effective mechanism in English courts, however, for resolving the issue of who gets the family dog”.


I am informed that this niche professional journal got a large response to this blog piece on pets. When I was weighing up whether to sign up to speak on this Motion in such eminent company, I was reassured that “You and Yours” on Radio 4 this Monday had the subject matter of “pet-nups”. Do His Majesty’s Government have a view on pets in prenuptial agreements and on whether they should continue to be considered chattels? Is the committee that your Lordships established under the Animal Welfare (Sentience) Act 2022 looking at this matter?

This is happening in other jurisdictions. Colombia amended its law in 2016 and its case law recognises that emotional bonds to animals within families do not equate to making animals equivalent to humans. Proposals are apparently afoot to amend the Italian legal code to

“regulate the custody of family pets upon separation or divorce”,

and New York has a best interests test on deciding the custody of a companion animal. In many of these changes, the jurisprudence stems from a recognition of the sentience of animals, so it looks like the Animal Welfare (Sentience) Act 2022 might inadvertently have started us on this journey. These changes also recognise humans’ emotional connection to animals and move away from the division that anything non-human is merely an object. I hope His Majesty’s Government will look at these comparators to see whether they have affected prenuptial arrangements in those jurisdictions.

I thank the working group on pets and divorce, barrister Sarah Lucy Cooper and solicitor Estella Newbold-Brown for their work on this and for drawing this to my attention. This group also has the support of the previously mentioned High Court judge, Sir Nicholas Mostyn, and the Kennel Club. Will His Majesty’s Government agree to meet them to understand the solutions in this area of the law and how often it is an issue in proceedings?

In principle, I share the sentiments of the noble and learned Baroness, Lady Hale, in her vigorous dissenting judgment in Radmacher. I also note the comments of the right reverend Prelate that this is a covenant, not a contract. It reminds me so much of the wisdom we used to receive from the late Lord Sacks in explaining to us the difference between covenants and contracts. I am pleased to learn that there would be an irreducible minimum here: a spouse would not be left so destitute as to be dependent on public funds and an agreement should not be allowed to leave the burden on the taxpayer rather than on the other spouse who has means.

As I conclude, I realise that I may have gone from the sublime to the ridiculous—from women who are left destitute and without remedy as they are not legally married to the custody of family pets—but this reflects the variation and breadth of issues that the breakdown of a marriage or civil partnership can reveal and the issues that the Government need to consider when legislating for a prenuptial, or pet-nuptial, agreement.