Prenuptial Agreements

Lord Meston Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, I have practised in family law as a barrister for many years and latterly have worked as a family judge. I do not find it altogether easy to recognise the picture of how the law now works, as portrayed by the noble Baroness, Lady Deech, but never mind; that is a debate for another day.

Given that the median duration of marriages ending in divorce is now just under 13 years, it is a good time to assess the effect on law and practice of the important decision of the Supreme Court in Radmacher 15 years ago. Typically, the parties to prenuptial agreements may legitimately wish to ring-fence inherited or previously acquired assets or, as the noble Baroness, Lady Shackleton, said, wish to ensure provision for children of previous relationships. Not surprisingly, agreements are now said to be popular with the farming community, with their particularly illiquid assets. All who enter into such agreements will naturally wish to avoid the costs and hazards of litigation.

The perception and use of prenuptial agreements have developed remarkably. They were felt by some to devalue a view of marriage for life, distastefully requiring the involvement of lawyers in what was supposed to be the happy period leading up to the marriage ceremony. They used to be seen as required only by wealthy older men after several unsuccessful trips around the matrimonial course, who wanted to protect themselves in case the latest candidate for matrimony turned out to be a gold-digger—at least, from the man’s point of view. They were also seen as disadvantaging women, who were asked to waive some or all of what they might expect to receive if the marriage later ended in divorce, and as allowing parties to contract out of the responsibility to meet each other’s needs.

In a classic American case, the very wealthy husband, 25 years older than the wife, presented her with an agreement only a few hours before the marriage ceremony, and threatened to cancel the marriage if she did not sign. She had sparse knowledge of his finances and did not have any independent advice, only a session with a lawyer selected by the husband. That lawyer, to his credit, advised her not to sign. However, in spite of that advice, she signed the agreement and the marriage went ahead. Thirteen years and two children later, there was a divorce and costly litigation across two state jurisdictions.

The decision of the Supreme Court in Radmacher has reduced the prospect of such a scenario in the United Kingdom. Rushed agreements with limited legal advice and limited disclosure, particularly if they appear unfair and very different from what the court might otherwise order, cannot expect to be upheld, and in reality can be worse than having no agreement at all.

The Law Commission’s later well-researched and reasoned recommendations in 2014 included the crucial requirements for there to be independent legal advice for each party and sufficient financial disclosure, and for the agreement to be completed at least 28 days before the wedding. Although those recommendations are not yet in statute, they undoubtedly already reflect current good practice and have helped to make agreements more popular and effective.

I noted with some surprise the doubt expressed by the noble Lord, Lord Faulks, questioning the need for a cooling-off period of 28 days. However, there is a need to protect those who get married in a fever, to quote the old song.

The remaining area of controversy concerns whether and in what circumstances the court might go beyond an agreement, freely and properly entered into, that would otherwise be expected to be binding upon the parties. There is a clear distinction between agreements unfair from the outset and agreements that may later operate unfairly if access to legal remedies is severely restricted. It was recommended by the commission that the court’s jurisdiction to make provision for needs should not be ousted by qualifying agreements, so that no party would be left unjustifiably without resources following separation. To that extent, the mere fact of an agreement cannot make fair what may otherwise appear or become particularly unfair.

The Law Commission said there was little evidence of how agreements operate in practice and that it would be helpful to have more relevant information about how popular they are, how they are treated in litigation and how many cases settle on the basis of agreements. I suggest that it would also be helpful to have reliable overall evidence of the difference between the outcomes that prenups produce and the outcomes that the court would otherwise direct. I suspect that the majority of prenups are not seen by the courts because the couples involved manage to stay married and leave the agreement in a drawer, and that many other agreements are seen by the courts only because the parties simply wish to comply with it by submitting it in support of an agreed order, to reflect what has been agreed.

It is likely that those prenups that are challenged, at least by those with enough money to do so, come before the court only because of inadequate drafting or unforeseen changes in circumstances, or because of an irresistible dispute about jurisdiction if the agreement was made outside England and Wales. However, I seriously question the number of challenges that was suggested by the noble Baroness, Lady Deech, but statistics will prove one or other of us right or wrong.

Carefully prepared agreements, although unromantic and transactional, can provide couples with a sense of security and certainty, reducing some of the acrimony and expense in the event of later permanent separation, and reducing the temptation to divert or conceal assets ahead of a divorce. Specialist legal practitioners can now help parties to achieve fair, realistic and civilised agreements, capable of later revision, that the courts will uphold. Indeed, if in doubt, the parties can now ask the court for an early decision as to whether the agreement is determinative of their financial affairs.

Nevertheless, there remain parties who sign agreements and marry, having ignored, rejected or not understood good legal advice that they could or would be better off marrying without the agreement. The Law Commission described the argument for autonomy as strong but as raising concerns that some may still enter an agreement unwillingly or with unrealistic optimism. The chances of that are not likely to be much diminished by any legislation. As the right reverend Prelate suggested, contractual autonomy has to be seen in the peculiarly emotional context of these agreements.

It is clearly premature to anticipate a final report by the Law Commission on the much wider question of whether and how substantial reform of financial remedies legislation should be undertaken, and any decision by the Government on that. Paragraph 7.98 of the commission’s recent scoping report suggests that, if there is not to be major change, its recommendations relating to agreements could be implemented straightaway, but, if major changes are expected, the recommendations about agreements will need to be reconsidered. We should be grateful to the noble Baroness for making us think hard about that.

If there are major wholesale changes, many existing agreements could well need postnuptial revision and renegotiation. An important component of any good advice is what a court might do in the absence of a prenup to protect the economically weaker party. Until it is clear what the law is to be in the foreseeable future, it will be hard to give satisfactory advice to those who need it about what might happen at a much later date.

If reforms are undertaken piecemeal, with prenups legislated for in advance of substantive law reforms, there is a risk that some agreements based on the substantive law in force when the agreement was reached would become unfair, and so would either produce an unfair result or have to be renegotiated, if the parties were willing to do so, failing which they might have to go to court. However, I accept that, to some extent, that risk exists irrespective of whether the law relating to prenups is reformed as the noble Baroness has proposed, and irrespective of changes that may be further down the track

Accordingly, meanwhile, until clarity is reached and a decision is made about how we should proceed, I suggest that the approach that has developed following Radmacher now works well, and that the family courts can and should be trusted to continue to deal with individual cases as required.

Humanist Weddings

Lord Meston Excerpts

Monday 3rd February 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I cannot remember making that commitment, so I will need to write to my noble friend about that matter.

[Lord Meston (CB)]

My Lords, the House should recognise that the Minister’s answer of “in the coming months” is rather better than we have had before. Humanists and others simply want a marriage ceremony that reflects their beliefs, whether religious or not, and that will be legally recognised without unnecessary obstacles. Can the Minister confirm that the Government are now actively looking at comprehensive reform, in line with the Law Commission’s 2023 recommendations, to help not just humanists but other similarly disadvantaged groups, even if that may take more time than we would want?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. The Government are indeed looking at comprehensive reform. There are many anomalies within our current marriage law and a number of disadvantaged groups. We believe that we need to take our time on this matter to get the answer right, so I thank the noble Lord for his question.

Humanist Marriages

Lord Meston Excerpts

Monday 2nd December 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The statistic that the noble Baroness cited is accurate from my experience. Yes, such a change would have a disproportionate benefit for same-sex couples, and that factor should be taken into account in the review.

[Lord Meston (CB)]

My Lords, does the Minister agree that, rather than an equality impact assessment, what are required are certainty, clarity and essential fairness in the law governing all marriages, religious and non-religious, in line with the recommendations of the Law Commission back in 2022? People now use a variety of ceremonies—religious and non-religious—and should, frankly, be confident of their status at the end of each ceremony. Surely, the Government can direct reforms to meet those requirements.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord. The objective of the Government is to have clarity and fairness in relation to weddings within England and Wales. There were 57 recommendations in a 500-page report from the Law Commission, and the Government need to take their time to consider them all carefully.

Property (Digital Assets etc) Bill

Lord Meston Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Lord Meston (CB)]

My Lords, we should indeed be grateful to the Minister for his introduction to this Bill. It concerns a topic for which there are mixed messages, as we have already gathered.

Digital assets are now said to be a fundamental part of modern society and economies, yet it is clear that many people continue to regard them with suspicion. They see them as a currency for criminals; as a sophisticated way to launder money or otherwise put funds out of reach in order to evade tax or creditors; or, in the legal area with which I am most familiar, as a way to frustrate claims by estranged spouses and partners. Others regard any investment in digital assets as a peculiarly risky way for fools to be parted from their money, lacking even the colourful excitement of a horse race or tulip fever.

However, it is also clear from the enthusiasm we have heard today that the market in crypto assets is here to stay and grow. Nevertheless, these are programmable assets that remain volatile, illiquid and an intangible species of wealth. They are transferred, stored or traded electronically on what are described as permissionless and public global systems with unregulated intermediaries, which are, as I recently read, detached from traditional geographical boundaries.

It seems that the criminal law is ahead of the civil law in this regard, as was shown by the Economic Crime and Corporate Transparency Act of last year. The law and many non-criminal lawyers have had to get to grips with unfamiliar technological terminology and legal complexities. Bitcoins, altcoins and Bored Apes are beyond the experience and ambitions of many of us; I admit that, before starting work on this Bill, I had never heard of, let alone thought about, reification or rivalrousness. Doubtless others present for this debate talk of little else.

The remarkable feature of the debate is that we are now considering a Bill, as has been said, with just two clauses on less than one page; indeed, the use of the abbreviation “etc” in the short title is hardly justified. It follows, of course, a report by the Law Commission of more than 300 pages and a supplementary report of a further 80 pages. The Law Commission reports on this topic show a breadth and depth of research and analysis based on wide consultation, making its conclusions authoritative and compelling. Of particular help is the way in which those reports expressly consider, balance and address differing and contrary arguments and viewpoints.

The fundamental proposition underlying the Bill is the conclusion of the commission that, in the common law world and elsewhere, there is now a persuasive, clear and well-reasoned body of case law that holds that certain digital assets are capable of being objects of personal property rights; and the further conclusion that the law should focus on the attributes or characteristics of the thing with which it is concerned in a particular case, without rigid application to so-called “third-category things”—legal principles formulated by reference to other things that are capable of being objects of personal property rights.

The Bill itself, admirably drafted with unambiguous brevity, is designed to knock out potential arguments about the essential nature of the property rights relating to digital assets. It is now to be hoped that, as a result, there will be no further doubt that such property rights fall within Article 1 of the first Protocol to the European Convention on Human Rights; and that, nearer to home, digital assets can be property capable of transfer in matrimonial and family cases before the courts.

I suggest that the points to take away from the Law Commission’s work are these. First, statutory confirmation through the Bill will provide greater and valuable legal certainty for many cases, and will allow the law to develop from a clear foundation and from a considered parliamentary decision that has recognised existing modern realities.

Secondly, the Law Commission has recognised the limits of what it wishes to propose in this area, expressing its confidence in the flexibility and capabilities of the common law and our courts to provide for any necessary further development and definition of boundaries. The commission has not attempted to provide a Bill with greater detail or exhaustive definitions, so avoiding what was once called the vain search for greater certainty; indeed, rather than trying to make the legislation judge-proof, it is expected and intended that the courts will deal with developments as they arise. As the commission stated:

“We also consider that the market will, in general, gravitate towards legal structuring of arrangements where existing legal certainty is high”.


It was therefore suggested that much remaining uncertainty will be transient and will diminish through the operation of markets. There was a welcome conclusion that much of the current law can be applied to provide causes of action and remedies.

Thirdly, the Law Commission supplemented its view of what could be achieved through the courts with the recommendation of the creation of a panel of experts, practitioners, academics and judges to discuss difficult factual and legal issues, particularly relating to control, and to provide guidance, albeit non-binding. It is welcome that this recommendation has been accepted and, as I understand it, is being implemented.

Fourthly, these mechanisms should provide the foundation for the courts to consider both the duties of developers and intermediaries towards users and consumers and potentially complex international jurisdictional questions.

Fifthly, the commission tells us that the large number of crypto-related frauds and scams is likely to serve as a catalyst for further development of the law relating to following and tracing.

Finally, it was hoped that the statutory confirmation of the position would reduce the time spent by the courts on questions of categorisation, allowing them to focus on substantive issues. Certainly, the law reports in this area show how much time and effort have had to be devoted to discussion of the legal status of the assets concerned. This Bill, if enacted, should help to reduce this tendency, although I suspect that the legal profession can still take comfort from the adage that there is always at least 10 years’ work in a new Act of Parliament. Given the position taken by the Law Commission, it is now for Parliament to respect that position and the reasoning behind it.

It is to be hoped that the separate and different action required in Scotland will be encouraged, so far as possible, to align the law in each jurisdiction. More practically, this is not just esoteric law for lawyers; at a practical level, the greatest challenges to the public and their advisers relate to insolvency practice and to those dealing with succession and probate, who have to try to locate, realise and value these assets and any liabilities. Even if the owners of such assets manage to avoid tax and debt, they cannot avoid death. The now well-known case of the Canadian gentleman, Mr Cotten, who died while the sole password holder of an account containing £105 million worth of cryptocurrency, demonstrates the fragility of digital assets on death.

As the Law Society and consumer bodies remind us, not enough people make or update their wills and even fewer prepare a digital inventory or legacy plan or give directions to help their loved ones or personal representatives to identify or access digital accounts. There is a lot of good and necessary advice for those of us who have failed to do so, and I for one am going home to prepare just such an inventory.

Humanist Weddings

Lord Meston Excerpts

Wednesday 16th October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble and learned Lord. That is an important factor within the wider consideration of this issue. It is also a factor concerning which groups would be included. His point about focusing on the celebrant rather than the building is fundamental.

[Lord Meston (CB)]

My Lords, although this Question refers only to humanist weddings, it really does concern the unsatisfactory state of the law on the formation and validity of marriages. The inconsistencies and potential for unfairness have been comprehensively shown by the Law Commission in its report, which I remind the House was produced over two years ago. As to humanist weddings, which are part of the wider problem, there remains the anomalous difference between the law applied in England and Wales and the law in Scotland and other places where humanist marriages are recognised without the need for a separate civil ceremony. Can the Government indicate what work is under way to align and modernise the British law overall? At the very least, surely the Government do not want to become responsible for an exodus of lovelorn humanists to Gretna Green.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord, Lord Meston, for his question, and I agree with his premise that the current state of laws regarding weddings is unsatisfactory. Although the current weddings law is contained within the Marriage Act 1949, the fundamental structure of weddings law dates back to the 18th and 19th centuries. There are profound difficulties, and I acknowledge that point. I am giving a commitment that the Government will look at this in the whole and undertake to come back in due course with rounded recommendations to address these issues.