Financial Provision on Divorce

Baroness Shackleton of Belgravia Excerpts

Monday 10th November 2025 Lords Chamber

[Baroness Shackleton of Belgravia (Con)]

My Lords, I am grateful to the noble Baroness, Lady Deech, for this debate. I feel humbled to follow the noble and learned Baroness, Lady Butler-Sloss. I have spoken on many occasions in your Lordships’ House about the urgent need for reform in relation to ancillary relief in divorce. Rather than go over very familiar territory, which just gets lost, I will focus—as previously flagged to the Minister—on the law in prenuptial contracts, in the hope that something will actually get done. It is simply not acceptable that the legislators will not deal with this issue as a stand-alone one to be fixed. This came before your Lordships’ House on 28 February, and I am still waiting for a response from the noble Lord, Lord Timpson. I do not make any criticism there, because when we were in government it was no better.

To say that this depends on sorting out the entire matrimonial financial remedies situation, including cohabitation rights, is an absurd excuse for dealing with an issue that is not even mentioned in the 1973 legislation as amended, and on which the Supreme Court in Granatino, now 15 years ago, invited Parliament to legislate. I declare my interest both as a divorce lawyer and as a member of the Marriage Foundation. As one can imagine, 15 years since the ruling in Granatino upholding the validity of prenuptial contracts in certain circumstances, there has been a seismic shift in the acceptability of such contracts. As a consequence of them being entered into, and those marriages breaking down now, the occurrence of cases appearing before the family courts has increased.

According to a recent survey, 46% to 47% of people under 50 regard such contracts as a good idea, whereas 37% of the over-65s are in favour of them. The best statistics that I could glean in relation to prenuptial contracts coming before the courts are as follows. In 2010-15, there were 310; in 2015-20, there were 359; and in 2020-25, there were 542. Prenups are no longer the preserve of the rich—or exclusively of the rich—and sufficient time has passed since Radmacher for prenups to trickle down into public consciousness. Not only are prenuptial agreements more common, but they are also entered into by parties who have modest assets but wish to retain their financial autonomy—maybe one is a homeowner, or maybe there are two professionals —or by people entering a second marriage.

The point made by my noble friend Lord Patten on children is good and valid. Wearing my hat as a Marriage Foundation member, I note that statistics show that, when children are born of unmarried couples, they fare less well and that that relationship is more likely to flounder. People do not get married when the uncertainty of getting divorced is so obvious and they cannot protect themselves.

There is absolutely no consistency in how these contracts are applied, the two-step test in Radmacher being that the contract has to be entered into freely between the parties but will not be upheld if a court determines that it is unfair to do so. What is fair depends on the judge, who from Parliament is given no legal direction. The application of the law is now at odds with the facts in this case, where there was no disclosure and the husband, although advised to get legal advice, did not get any. Had he done so, he would have found that the law in England, where the parties were living, was that these agreements were only evidential and unenforceable.

The issue of fairness, which influences whether the court will uphold such a contract, usually revolves around the applicant’s needs, although needs is a very elastic and discretionary term applied by the tribunal. It is not even clear with the whether the existence of a PNC limits or curtails needs. For the avoidance of doubt, it is impossible to contract out of children’s maintenance, which is always open for the court to adjudicate on. The absence of any legislation in this regard leaves such contracts open to challenge; at a time when the rest of the law is so very uncertain, their reliability is even more important. The idea that alternative dispute resolutions or mediators are able to sort out the problem in relation to the treatment of a PNA is fanciful, when two respectable lawyers can differ in their interpretation of the law and therefore frustrate any mediated situation. From October this year to May of next, the president has announced—

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

I am sorry to interrupt, but I am conscious of the advisory time limit and giving the Minister enough time to wind up.

[Baroness Shackleton of Belgravia (Con)]

Can I just finish quickly then? The president has announced that financial remedies are being taken out of the list, because there is no time to deal with them. The courts are being blocked by litigants in person and rich people and, in a situation where the law were clearer, the courts would have more space to deal with people who really need them.

--- Later in debate ---

[Baroness Levitt (Lab)]

It is very difficult to resist the noble and learned Baroness, with all her experience, but I am afraid that I will have to do so.

I pay tribute to the noble Baroness, Lady Shackleton, who is greatly admired and respected, not just because of her expertise and experience. The points she raised were supported across the House by almost all noble Lords. It is frustrating that the previous Government did not give a full response to the Law Commission’s 2014 recommendations on nuptial agreements. As we are working towards our consultation, we are carefully considering this issue. It will be taken into account, to ensure that we have a consistent framework, which will be designed mainly to put children at the centre of what happens when relationships break down.

[Baroness Shackleton of Belgravia (Con)]

I am sorry to interrupt the Minister. To what extent does a prenuptial agreement influence the protection of children? We cannot legislate in a prenup any rights in relation to them. It is open to the court—every single avenue is open to the judge. Someone simply cannot contract out.

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?