Enforceable Prenuptial Agreements: Their Time Has Come

"Jeremy D Morley, Attorney-at-Law, International Family Law Office, New York, USA. The author says that the failure of English courts to enforce prenuptial agreements is an anachronistic peculiarity of English law that demonstrates a stubborn refusal to adapt the law to new conditions. The recent judgments of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 point to the urgent need for the courts to set aside the preposterous contention that it is 'substantially uncontestable' that substantial harm to the public would arise if prenuptial agreements were enforceable.

The current law results from the ruling in 1929 in Hyman v Hyman [1929] AC 601 that binding prenuptial agreements contravened public policy. However, society has changed dramatically since 1929. When Hyman was decided, people had little expectation of getting divorced and divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce. The status of marriage itself provided all of the necessary terms of the relationship between spouses.

See September [2006] Fam Law for the English law article. The full version of the article containing comparative international references will be published in Issue 4 of 2006 International Family Law"