Keywords: Pre-nuptial and post-nuptial agreements – ante-nuptial and post-nuptial settlements
– separation agreements – public policy
The first clause in the Law Commission’s draft Nuptial Agreement Bill would abolish the
common law rule that invalidates agreements contemplating a future separation. The confusion
surrounding the current status of this rule is evident from the phrase within the clause, ‘if it still
exists.’ By tracing the common law rule to its source, this article demonstrates how key cases
have misinterpreted the historical development of this rule and that the rule still exists in terms
of judicial reasoning. The broader question as to whether or not the rule should exist is also
examined: this needs to be extracted from the confusion and considered afresh, bearing in mind
the importance of the rule to the very nature of marriage. The conclusion is that the rule should
be abolished by Parliament, but that this decision should be based on the outcome of pertinent
deliberations and free from clouded reasoning.
