Prenuptial Agreements

Baroness Shackleton of Belgravia Excerpts

Thursday 27th February 2025 Lords Chamber

[Baroness Shackleton of Belgravia (Con)]

My Lords, it is a great pleasure and a privilege to follow the noble Baroness, Lady Deech, in this debate. I thank her very much for bringing it to the House’s attention.

First, I declare my interest as listed on the register: I am a solicitor of 45 years, specialising in family law. I wish to make it absolutely clear that nothing that I say in this speech reflects any of my current matters before the courts. Indeed, it could not, because, before the end of this legal year, I have five cases being argued which involve prenuptial contracts—two in the High Court, two in arbitration and one in the Court of Appeal. In some, it is argued that it is not appropriate to enforce, and in others that it is appropriate to do so. I am also a patron of a Marriage Foundation.

The origins of prenuptial contracts not being enforceable stems from the notion that it was unconscionable to contemplate the breakdown of a contract which is intended to last for life. That is possibly the reason why the words “prenuptial contract” are not specifically addressed in the Matrimonial Causes Act 1973, as amended. The only reference to marital contracts in that Act is that the court has an overriding discretion to alter any contract made before, during or after a marriage. When the Matrimonial Causes Act was enacted, divorce was considered unusual and applied to few. Now, regrettably, there is hardly a family in the land which has not, in some shape or form, had to face the reality that many marriages do not last for ever.

The far-reaching changes to social norm over the years are themselves simply a sufficient base to call for reform of the law. Indeed, as Sir Paul Coleridge, a former High Court family judge, said in his address to a family law conference in 2013, when the MCA was 40 years old:

“Since family law is intended to regulate family life as it is lived now and not in the distant past, it follows that the current divorce and financial provision law … is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a wholly different society and way of life … The Matrimonial Causes Act 1973 with all its layers of crustacean growth needs to be humanely killed off and given a decent burial and the heroic efforts of the Supreme Court to maintain the life support system need to stop. The Act has, quite simply, had its day”.


That speech was made in 2013. The following year, two changes were made which are worth taking note of. The first was that the appeal system from the High Court judge to the Court of Appeal was altered, and the refusal of leave, quite frequently from a single family judge, was the end of the road. Prior to that, there was the ability to appeal against the refusal of leave and to be heard, quite frequently, by a non-family judge. The Supreme Court, which is largely composed of non-family judges, was the “life support system” to the Act to which Sir Paul Coleridge refers, but getting there now is almost impossible, as family judges in the Court of Appeal are marking their own homework, and that is not capable of challenge.

The second change was the Law Commission’s report, referred to by the noble Baroness, Lady Deech, Matrimonial Property, Needs and Agreements. It made recommendations for the introduction of binding nuptial agreements, which were referred to as “qualifying nuptial agreements”. These would be enforceable contracts that would not be subject to the scrutiny of the court, which would require certain procedural safeguards to be met, and which, importantly, could not be used to contract out of an obligation to meet financial needs. The 2014 report was commissioned as a direct consequence of the Supreme Court’s plea in Radmacher v Granatino—a case that I am all too familiar with, having been on the losing side—for Parliament to legislate in respect of these contracts.

Absent the implementation of guidance by Parliament in respect of nuptial agreements, we are back with the discretion of the tribunal. The clear message of Granatino that prenuptial contracts should be enforceable unless it would be unfair for them not to be leaves the fairness to the trial judge, which is totally discretionary. No prenuptial contract is able to prohibit children’s maintenance—the court has an overriding jurisdiction over that which cannot be ousted.

As a consequence of Granatino, there are many more prenuptial agreements in circulation, all stacking up, and when a divorce occurs there is an increasing number of cases awaiting adjudication—hence my five cases mentioned earlier. The very reason for entering a prenuptial contract is removed when the period of a marriage is the same as the length it takes to adjudicate the financial relief on divorce. People are entitled to know how the judges are going to exercise their discretion. The Law Commission provides enormous help in this respect and its recommendations should be enacted. The uncertainty of outcome would be reduced and the already overburdened courts would be relieved of some unnecessary work.

The idea that prenuptial contracts favour only the rich is not accurate. When a person of significant wealth is intending to get married and asks how their assets could be protected, the correct answer is: by not marrying. The financially weaker party is then left with no rights whatever, except when there are children of the family, when a claim under Schedule 1 to the Children Act is all that is available to them. If, however, the law of enforceability of prenuptial contracts was more certain, there would be a greater incentive to enter into marriage. Wearing my other hat as a patron of the Marriage Foundation, it is also in the interests of society that people are encouraged to get married in circumstances where evidence points to the fact that married relationships are more likely to endure, for the benefit of any children, than if the parties were mere cohabitees.

In other countries, it is commonplace on marriage for nuptial contracts to be entered into—typically community property or separation of property. The courts now have to grapple with the enforceability of these contracts.

I ask the Minister, rather than being distracted by the temptation to consider overall reform of the Matrimonial Causes Act 1973, to concentrate on the reasons why the Government cannot deal with this isolated stand-alone area of the law, which, as the noble Baroness, Lady Deech, says, is oven-ready. It is akin to having a leaking roof and water dripping down the walls, but not having the roof fixed until you have decided what colour to paint the walls. Eventually, the delay will cause the roof to collapse, with all the collateral damage that causes.

The development of ancillary relief is complex and there are no easy answers, as the most recent Law Commission paper has set out. Every Government seem to encourage alternative dispute resolutions, but these do not work when the law in itself is uncertain. All Governments shy away from grappling with this issue.

I have received significant support in my mission to make the law clearer from mediators, mostly notably Helen Adam, who attended a panel convened by Siobhan Baillie to consider reform of the current law. Helen, in exasperation, recently sent me a message. After conducting a mediation, she had sent her clients—parents of three young children—to solicitors for advice, where they were given entirely different advice and so were unable to settle in mediation. Those parents face the prospect of further costs, stress and acrimony in their legal proceedings ahead, none of which is in the interests of their young children. She says this happens all too regularly. In her last plea she writes:

“Maybe we need to get the press involved to get a Bates v the Post Office-type documentary, to bring this scandalous legal situation into the public domain”.


Delay is in nobody’s interests, least of all the minor children of the family, where the previous Government sought to expedite the dissolution of marriage by no-fault divorce without the promised follow-up of enacting any reform in relation to financial relief. Until the money is sorted out, the parents are not free to move forwards. At least if the law on prenups was more certain, mediators would have more success when dealing with these.

This brings me to my last point, which is the purpose of Parliament. I fully endorse the Lady Chief Justice’s protection of the judiciary: it can only enforce the existing law, and the appeal process is what protects litigants. When Parliament is invited by the Supreme Court to legislate, as it was in Granatino, and 14 years later nothing has happened, we have to look to ourselves in shame.

I conclude with two pleas. First, please can the Government address this matter and fix the leaking roof? There will be plenty of time to discuss the colour of the walls, but that too should not be pushed off too far into the long grass. Secondly, until this is resolved, please can the Government reinstate the appeal process by restoring the right to appeal against the refusal of leave by the Court of Appeal, so that the life-support system of the Supreme Court referred to by Sir Paul Coleridge is more accessible?