Prenuptial Agreements

Lord St John of Bletso Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord St John of Bletso (CB)]

My Lords, I am grateful to my noble friend Lady Deech for her tenacity in campaigning for the reform of this area of family law. Unlike my distinguished friends next to me, my noble friend Lord Meston and my noble and learned friend Lady Butler-Sloss, I am not a family law judge. I have simply been a divorce lawyer in South Africa, practising under the corpus juris civilis in Roman-Dutch law. I shall not speak for 11 minutes and will keep my comments brief.

When we debated my noble friend Lady Deech’s Private Member’s Bill, the Divorce (Financial Provision) Bill, way back in 2018, we were led at the time to believe that, following the Law Commission report, prenuptial agreements would soon be placed on a statutory footing and be enforceable. That was subject, of course, to both parties entering the agreement without duress, it being fair, it being reasonable and both parties receiving independent legal advice before signing the agreement. Sadly, seven years later, prenuptial agreements are still not enforced by courts in England and Wales, and the can is constantly being kicked down the road.

If I can revert to my experience of being a divorce lawyer in South Africa, where we refer to prenuptial agreements as antenuptial agreements, they have worked very well for decades. It does pose a problem when South Africans move across to the United Kingdom: if a couple were, sadly, to divorce in this country, they would not be able to get divorced with that prenuptial agreement.

I am also very familiar with the Radmacher v Granatino case in 2010, which many noble Lords have mentioned, and I am also cognisant of the fact that London has the reputation of now being the divorce capital of the world. Clearly, public attitudes have changed, and the public is now broadly supportive of prenups.

The time has come to simplify divorce processes, reduce the emotional strain and, with that, reduce the costs. Simpler, streamlined procedures would benefit both divorcing parties as well as the legal system. While many lawyers advocate for reforms to make the process more efficient, I accept that opinions differ, based on personal practice, experience and client consultations. My noble and learned friend Lady Butler-Sloss made a very powerful point about change in circumstances, and to that degree I support post-nuptial agreements.

Clearly, there needs to be a balance between efficiency, fairness and adaptability. For prenups to be enforceable, there needs to be full disclosure and transparency of both parties’ assets and liabilities and the financial condition of both parties. Also, both parties need to have independent legal advice, and have it weeks—if not possibly months—before they get married. Prenups should be signed by both parties voluntarily, and the terms should be free, fair and reasonable.

Pivotal to any reform must be the consideration of children’s needs, ensuring that the financial provisions for the welfare and needs of children are at the very centre of any settlement. To this end, maintenance provisions for children born in the course of marriage would need to be determined separately to the prenup. I would also encourage promotion of financial disputes outside of the courts, through what are called ADRs, including mediation and collaborative law, aiming to reduce the burden on the legal system and the emotional stress of both parties.

In the context of prenuptial agreements, inheritance, gifts and premarital property can generally be included or excluded based on specific terms of both parties. I do not have the answer to this, and it reinforces the need for disclosure and transparency. I also agree with the point made by the noble Baroness, Lady Berridge, that we need to promote public awareness of these changes, ensuring that individuals are aware of their rights and obligations within a marriage or cohabitation context. The bottom line is that huge amounts of money are being spent on negotiating financial settlements in acrimonious divorces—I speak as one who has been divorced—which often ignore the best interests in the marriage.

I am totally in favour of providing safeguards and protections, but the time has come to simplify the proceedings and bring in more certainty and more enforceability. We constantly hear from Ministers at the Dispatch Box that, “All options are being considered, and a response will be given in due course”. I hope that, when the Minister winds up the debate, we can get a clearer timetable for prenuptial agreements to be finally incorporated into family law and be enforceable.