19 April 2010

Sandra Davis considers the practicalities of prenup legislation

To paraphrase Oscar Wilde, we've grown suspicious of anything that looks like a happily married life - the proof is in the column inches devoted to celebrity divorces and the financial awards made against the fabulously wealthy.

Is it any surprise then that family law and the institution of marriage look like being a major battleground in the coming election?

The battle lines have been drawn. The Conservatives favour financial incentives to promote marriage and civil partnership, while Labour and the Liberal Democrats refuse to draw any distinction on the basis of a couples' legal status. 

The Conservatives also back the legal recognition of pre-nuptial agreements. This seems counter-intuitive only if the 1920's argument that pre-nups undermine the sanctity of marriage still holds today. The Conservatives appear to accept instead the argument that enforceable pre-nups will provide the reassurance that 21 Century couples need to persuade them to walk down the aisle.

Of course the Supreme Court will shortly let us have a view from on high of the place pre-nups should have in English matrimonial law and the Law Commission's consultation on legislation will follow later this year.

But even if the Conservatives form the next government, the ride to legislative reform may be a bumpy one. UKIP are already up in arms at the announcement that 10 EU Member States intend to sign up to Rome III lite: a pilot enabling couples in those jurisdictions to opt (in their pre-nup) for the applicable law to be applied in the event of their divorce. It remains to be seen if the mention of divorce, Europe and harmonisation in the same sentence has senior Conservative MPs diving for cover.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

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