Prenuptial Agreements

Lord Faulks Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble Baroness, Lady Deech, on securing this debate and on her persistence on this issue in the face of government inactivity. It is also a great privilege to follow the noble and learned Baroness, Lady Butler-Sloss, with her immense experience of these cases. I declare an interest as a practising barrister, and, although not one primarily concerned with family law, one who has a forthcoming case which concerns a prenuptial agreement entered into by a husband and wife, the issue being whether or not the parties are to be bound by that agreement.

The burden of what I wish to say is that it is high time Parliament intervened. The result of intervention should be fewer cases such as the one I have just referred to. There is evidence, referred to by the noble Baroness, Lady Shackleton, that the courts are being increasingly troubled where one party or another to a marriage does not wish to be bound by a prenup, claiming that they did not enter into the agreement freely or that the circumstances have changed since the marriage, making it inequitable to rely on the agreement.

The law in relation to what used to be called “ancillary relief” on divorce gives the court a very wide discretion but gives it no clear guidelines as to how to apply that discretion. The Matrimonial Causes Act 1973 simply lists the vast number of factors that have to be taken into consideration. The result has been that the courts themselves have developed the law, which, although it has avoided some cases reaching court which might otherwise have done so, still leaves a considerable degree of uncertainty as to the outcome of proceedings that might be contested. I have here this very large volume from the Law Commission—the scoping paper referred to by a number of noble Lords. The Law Commission produced a clear and helpful summary of the issues, as one would expect, but did not come to any very firm conclusions as to what the appropriate legislative response to the uncertainty created by this wide discretion should be.

The Law Commission, however, has made some very clear suggestions for reform of prenuptial agreements. For a prenup to be “a qualifying nuptial agreement” it should be contractually valid on ordinary principles, it should be entered into by way of a deed, there should be disclosure of material financial information by both sides, and both sides should have independent legal advice. There is an additional proposal that such an agreement would not qualify if made less than 28 or 21 days before the marriage ceremony. I agree with all the other proposals, but I am slightly doubtful about the 28-day cooling off period. However, that is the sort of detail that could be ironed out during the passage of any Bill through Parliament.

Why has there been no response to what is now a series of quite old recommendations by the Law Commission? In 2014 the then relevant Minister, Simon Hughes, said there was insufficient time because there was to be a general election in 2015. I was a Minister in the MoJ at the time, although not one with responsibility for this particular area of the law, but I remember answering a question in your Lordships’ House and giving a similar answer to the one Simon Hughes had given. The answer given, on the other hand, by the noble and learned Lord, Lord Bellamy, to a similar query in 2022 was that the Government were considering the matter in the context of a wider review.

In the meantime, as we have heard, the courts took some significant steps to clarify the position in the case of Radmacher v Granatino. The Supreme Court had decided by a majority of eight to one, and I quote one particular passage which summarises their view:

“It would be natural to infer that parties who entered in enter into an antenuptial agreement to which English law is likely to be applied intend that effect should be given to it”.


The dissenting voice was the formidable one of the noble and learned Baroness, Lady Hale. On reading her judgment, she seems to have been concerned, understandably, that there was a possibility of a significant change in roles post marriage, which would mean that the agreement was unfair. I note the comments of the noble and learned Baroness, Lady Butler-Sloss, about what might be regarded as a very significant change in circumstances. As I apprehend what she was suggesting, it is not meant to be a general discretion but a discretion in very exceptional circumstances. The risk, of course, of having a discretion at all is that it can mean we are back to square one, as it were. If there is to be that discretion, I would respectfully suggest that it be severely circumscribed and limited.

My submission to the Government is that the time for action has come. We are still four and a half years away from a general election; there is thus plenty of time for this sort of legislation. I acknowledge that law reform is not always high on the list of priorities of a Government trying to make a significant change in this country, but surely the time has come to respond. The Minister may not be a particular expert in this field—although he has great expertise in other fields, of course—but I ask him to take back to the department the concern already expressed in this debate, and that I suspect will be expressed in speeches after mine, and ask his colleagues to prioritise reform in this area as soon as possible.

The response of the noble and learned Lord, Lord Bellamy, that reform should be part of a “wider picture”, is not one that I suggest the Government should make. It is very tempting to say, “Well, if you are going to address changes to financial provision on divorce, you want to tackle all the issues in one go”. But in the light of the ambivalence in the suggestions in the scoping report about more generally legislating, it would be most unwise simply to wait and produce legislation that covers all the uncertainty. It would be much more sensible, I suggest, to grapple with this relatively simple change to the law, which would be consistent with the law in continental Europe and probably in Scotland. It would also reflect, largely, the desires of those who consider entering into a prenup.

It is worth reminding noble Lords that it would not be compulsory to enter into a prenup, but where the parties have significant assets and are concerned about the future, particularly in the case of second marriages, as the noble Baroness, Lady Deech, said, the absence of legislation runs the risk of dissuading people from getting married at all—and not all of them, of course, are in your Lordships’ House. When I last looked, public policy remains in favour of marriage; it even finds reflection in the European Convention on Human Rights. I suggest to the Government that the time has come for action.

Criminal Justice System: Capacity

Lord Faulks Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for that question. In a sense, she exemplifies the difficulty of the various matters we are grappling with when trying to address the overall problem of having this large number of people in prison at the same time as the riots were happening over the summer period. I acknowledge that that is a difficult situation. Regarding the IPP sentences, the Government have set up an IPP action plan which they are working at full speed on, and proposals will be coming forward in due course.

[Lord Faulks (Non-Afl)]

My Lords, the Minister described very well the process which he undertook when sentencing somebody, giving them a sentence of imprisonment only when other avenues had been properly explored. I was a recorder for some considerable time and that very much echoes my approach and, I suspect, the approach of most judges: a real reluctance to send people to prison unless there is no other alternative. However, during the last Labour Government, there was an enormous amount of legislation changing the sentencing powers of judges and magistrates—particularly judges—and not trusting the judges to make their own assessment of what the appropriate sentence was. When there is this review of the appropriate response to the prison crisis, can the Minister convey to his colleagues that it is not a good idea to fetter the discretion of a judge and prevent them coming to the right conclusion in the right case?

[Lord Ponsonby of Shulbrede (Lab)]

I think I can reassure the noble Lord. It is intended that we will have very senior former judges on the sentencing review, who I am sure will take to heart the noble Lord’s point.

Strategic Lawsuits Against Public Participation

Lord Faulks Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble Lord on his appointment. He is of course doubly there—he is not only elected but appointed, which gives him particular status on the Front Bench. I sympathise greatly with his position in the Ministry of Justice, which he will much enjoy. He will remember the terms of the amendment put down to the then Economic Crime and Corporate Transparency Bill; it was a start, but will he agree that it is important that we have really muscular legislation? Can he bear in mind that his own Foreign Secretary said that these SLAPPs have the effect of

“stifling effectively not just the rule of law and freedom of speech, but particularly going to journalists doing their job”?

[Lord Ponsonby of Shulbrede (Lab)]

Regarding the noble Lord’s opening comments, I am a hereditary Peer, though not an elected one, but I am a life Peer, which is the reason I am standing here at the moment. The noble Lord is absolutely right: my right honourable friend David Lammy has expressed very strong views on this matter, which is one that the Government are taking seriously. As I tried to reassure noble Lords in my earlier answers, we want to get this right and to be trenchant in the legislation that we bring forward.