Prenuptial Agreements

Lord Farmer Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Farmer (Con)]

My Lords, I, too, thank the noble Baroness, Lady Deech, for bringing forward this important debate at the early stages of this Government; as the noble Lord, Lord Faulks, just pointed out, they have four and a half years to go. As my noble friend Lady Shackleton pointed out, this matter is always kicked into the long grass; it is therefore a good time for it to be brought out.

The Law Commission made recommendations in 2014, which it is currently reviewing, but calls to make properly drafted prenuptial agreements binding were made long before then, including by noble and learned Lords in this House, so it is hard to be optimistic about change, but, as a non-lawyer I want to take a slightly different tack. As an aside, I am in very good company with and have empathy for another non-lawyer, the noble Lord, Lord Timpson, who is preparing to respond to many legal eminences.

This Government have said that, for them to act, any measures will need to further one or more of their five missions. My argument is that making romantic relationships a little less romantic meets the opportunity mission test. Binding prenuptial agreements would, albeit indirectly, boost opportunity for children to do better. That is quite a leap, so I will elaborate. They would strengthen marriage by making it more intentional and less risky, thereby, it is to be hoped, helping to increase marriage rates throughout society. According to Louise Perry, more marriage would be better for women too, as they are the vulnerable party in our informal hook-up culture, where unplanned pregnancy means they are often left, literally, holding the baby.

Crucially, more marriage means more children benefit from the stability that the commitment of marriage brings to family life. Children of married parents are considerably less likely to experience their own relationship breakdown. This was emphasised by the Centre for Social Justice in its 2009 Family Law Review. Its starting point, unusually but importantly, was that any reform of family law needed to support family stability and address the prevailing culture of family breakdown. Then and now, this is the underlying social emergency at the root of and driving so many other social issues. Some 44% of children do not grow up with both their parents. Children who endure family breakdown are around twice as likely to experience homelessness, alcoholism and mental health issues; to get into trouble with the police or spend time in prison; to underachieve in education; not to live with the other parent of their children, and to become a teenage parent themselves.

Marriage makes a difference. The Millennium Cohort Study found that 88% of married parents were still together when their child was five years old compared to only 67% of parents who were cohabiting when their child was born. More starkly, children born to cohabiting parents were almost three times more likely not to be living with both their parents when they were five years old compared to children born to married parents. Attributing this difference in stability to marriage is often dismissed in favour of other coexisting factors that make people more likely to form lasting relationships, such as higher levels of income or education, but low-income married couples are significantly more stable than low-income cohabitees. How relationships are structured matters.

Anthropologically speaking, the whole effort of getting married, the ritual itself, the decision to commit and the explicit public nature of that commitment, and even the financial investment in marking that change of relationship status, are all qualitatively different from the slide into cohabitation which is very common. Psychologists such as Professors Scott Stanley and Galena Rhoades at the University of Denver have extensively studied how sliding into cohabitation differs from deciding to get married and how that affects relationship durability.

As we have heard, the noble and learned Baroness, Lady Hale, in her minority judgment in Radmacher v Granatino, which tested the binding nature of a prenup, spoke of the importance of maintaining a distinction between marriage and cohabitation. She also said that Parliament, not judges, needed to make the law in this area. In 1998, the last Labour Government published Supporting Families, the UK’s first ever Green Paper on family policy, and made a strong case for doing this. It is worth repeating what they said then:

“allowing couples, either before or during their marriage, to make written agreements dealing with their financial affairs which would be legally binding on divorce … could give people more choice and allow them to take more responsibility for ordering their own lives. It could help them to build a solid foundation for their marriage by encouraging them to look at the financial issues they may face as husband and wife and reach agreement before they get married”.

This speaks of the greater intentionality that prenuptial arrangements bring to marriage; people think about the future. Indeed, this measure was included in the section in the policy proposals on supporting marriage—still a very valid aim of social policy. It pointed out:

“Providing greater security on property matters in this way could make it more likely that some people would marry, rather than simply live together … Nuptial agreements could also have the effect of protecting the children of first marriages, who can often be overlooked at the time of a second marriage—or a second divorce”.


In its Family Law Review, the CSJ points out:

“England and Wales is unusual across Westernised family law jurisdictions in not having binding pre-marriage agreements … or other marital agreements”.


While prenuptial agreements should not be mandated or normative, it is responsible to consider what a couple would want to happen in future circumstances. Arguably, when the couple are in flush of premarital romance and well disposed towards each other, that is a good time to think about how finances should pan out if things do not work out.

Of course, some strongly hold that premarital agreements plan for failure, reflect distrust and undermine the commitment of marriage. I would argue, as Labour did in 1998, that this intentionality and ability to plan address the realism of the future. Moreover, it is ironic that while it is possible to have a cohabitation agreement to protect assets if a relationship fails, married couples in England and Wales are subject to the very uncertain outcomes of our current divorce law, which can create many perverse incentives.

The CSJ lists many other advantages of making prenups legally binding, such as the greater security that they give to those re-entering marriage who have been scarred by divorce, lower legal costs, fewer delays as judges have not the need to determine arrangements from scratch, and international norms which mean that prenups are expected to have legal force. Disadvantages include the difficulties of predicting future events and including these in the agreement. The vulnerable, weaker party—or the one who is keener to marry—may feel obliged to sign despite possible downsides for them. This leads to the issue of how much residual discretion, which we have heard about, should be allowed to the courts not to treat prenups as binding in particular cases. The more the discretion, the greater the opportunity for fairness and justice, yet the greater the risk that agreements are not binding at all. The lesser the discretion, the more unfair outcomes there will be, even though there is fairness in upholding agreements. Hence, in 1998, the Government permitted a narrow discretionary factor of “significant injustice”. Judge-made law could elaborate the circumstances in which “significant injustice” may be found.

In conclusion, I ask the Minister whether this Government will make the prevention of parental relationship breakdown a key part of their mission to break down barriers to opportunity—and of course of their child poverty strategy. Poverty is a consequence of family breakdown as well as a cause of it. Bolstering marriage is essential, as the last Labour Government realised. Perhaps counterintuitively, making prenups binding is a low-cost tool in the box to do that.

Sentencing Review and Prison Capacity

Lord Farmer Excerpts

Wednesday 23rd October 2024 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend for the question. As for what kind of prisons we need, I think we need a good mix of prisons of all shapes and sizes and in all locations. On IPP sentence prisoners, I am sure the House knows me well enough to know how deeply troubled I am by the state of the lives of IPP sentence prisoners. It is not included in the sentencing review because I feel we are already making good progress, albeit early progress. The IPP action plan is solid and we need to push on fast with it.

I am looking at two things at the moment. One is that 30% of IPP sentence prisoners are in the wrong prison for helping them fulfil their needs to get out of prison. I am also heartened by a dashboard that we now have so we know where every IPP prisoner is and where they are up to with their sentence—it may not sound much, but it is a game-changer for how we can support people to work through their sentence. So I want to make rapid progress. I also reassure my noble friend that, when I was running the family business, I managed to work alongside 30 colleagues who were IPP prisoners and they were absolutely fantastic, and the second chance that they were given was paid back in buckets.

[Lord Farmer (Con)]

My Lords, with sentencing of female offenders, much is made of their vulnerability, their adverse childhood experiences and revictimisation as adults. Judges are increasingly mindful of their roles as primary carers. All this is humane and understandable. Is the sentencing review going to take a similar approach to men? While they must also take responsibility for breaking our laws, many are equally vulnerable and have had many adverse childhood experiences—I think 25% of the prison population has had the experience of being in care—but it is culturally normative to take a far more punitive approach to men.

[Lord Timpson (Lab)]

I thank the noble Lord for the question. While the review will evaluate the sentencing framework and examine the experiences of all offenders, it will be guided by the evidence of what works to keep the public safe and to rehabilitate offenders. I am focused on the evidence of what works both here and abroad. Currently, judges and sentences already take into account the individual circumstances of each case to account for the culpability of the offender, male or female, and the harm they caused, or intended to cause and any aggravating or mitigating factors.

There are three facts that I am sue the noble Lord will know: female offenders make up only 4% of the prison population; over two-thirds of them are in prison for a non-violent offence; and 55% of women in prison have dependent children. What noble Lords may not know is that the average life expectancy for someone who is not in prison in this country is 82; if you are a man in prison, it is 56; if you are a woman in prison, it is 47. So, we clearly have a lot of work to do to support these very vulnerable and often ill people.

Prisoners: Early Release Scheme

Lord Farmer Excerpts

Monday 21st October 2024 Lords Chamber

[Lord Timpson (Lab)]

I am afraid I would not want to put a date on when things are going to change, but I assure the noble Lord that the remand population of 17,000 is far too high. He is right that a number of prisoners who are on remand do not engage as well as they should in all the opportunities they have to turn their lives around—for example, education and purposeful activity. Changing magistrates’ sentencing powers to 12 months will free up Crown Court time to reduce the backlog, and this will reduce time spent on remand.

[Lord Farmer (Con)]

My Lords, what help is being offered to families who experience difficulties when a prisoner returns home earlier than expected? Is the Minister familiar with the prison-based family hub that Spurgeons is running in HMP Winchester? This connects families with a full range of support local to their homes and works with them in full respect and recognition that they are often the most effective front-line rehabilitation asset in released and serving prisoners’ lives.

Prison Capacities

Lord Farmer Excerpts

Thursday 12th September 2024 Lords Chamber

[Lord Farmer (Con)]

My Lords, successful rehabilitation reduces pressure on prison places. My two reviews for the Ministry of Justice, which it continues to implement with dedication and enthusiasm, emphasise that healthy relationships greatly reduce reoffending, as those who receive family visits are 39% less likely to reoffend than those who do not have them. HMPPS is very mindful of closeness to family when selecting which prisoners to send abroad. Some 28% of foreign national prisoners are Romanian, Polish or Albanian, and would be closer to home in Estonia than in British jails, which would give us some more space.

Many prisoners without family on the outside or friends to help them go straight benefit from well-supervised peer support in prison, and those relationships protect against repeat offending. Trained prisoners mentoring others derive much purpose from this. They take a huge load off officers and recipients more readily take their advice about going straight.

I recommended that prisons be extrovert and draw in local charities and other organisations to expose men to opportunities on the outside. Community days in prisons ensure that those who never see the visits hall can learn there about work and volunteering, including from former prisoners. One revolving-door prisoner attending his first community day was very doubtful but said, “For the first time I found myself thinking about what comes next. Now I never want to come back in again”. Does the Minister plan to roll out peer support and community days across the estate?

Finally, the Question refers to vulnerable prisoners. Much is said about diverting women who have experienced trauma and abuse away from custody. Male offenders with similar histories are treated far more harshly. Surely we should be moving towards equality of approach in this area.