My first client of the New Year contacted me whilst I was in Central London for the New Year celebrations.

On New Year’s Eve, at 11.30 pm I was snug in my fleecy dressing gown, cosily watching the freezing crowds on the Embankment on television when…. we decided on the spur of the moment to dash there ourselves to see in the New Year!  We quickly got into some warm clothes and rushed into the cold. We arrived with our champagne and plastic flutes, just in time, because at midnight the London Eye was lit by the most spectacular firework display,- shortly after which my parents telephoned to say “We’re watching London on the telly but we can’t see you….!” Not unexpected in a crowd of hundreds of thousands of people!

The excitement of that night was sadly at odds with the new client meeting. The lady lives abroad and she too was in London for the New Year. She was about to divorce and, although she and her husband had separated on several occasions during the course of the marriage, this time it was final. She produced an agreement she had signed: a post-nuptial agreement.

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To my mind, the CSJ has jumped firmly onto a conservative (with a small c) bandwagon. I would go so far as to say that its proposals are reminiscent of the mindset of the American politician Sarah Palin, whose extreme opinions may have helped propel Barack Obama to victory.

You can read the CSJ’s report here. When I read Iain Duncan Smith’s comments about family law reform, my heart sank. They are acutely traditional and backward-looking. They indicate a refusal to face up to the overwhelming social changes that have affected millions of people and are here to stay. If this well-meant but unworkable report is really what the Conservatives may inflict on us if they win the next election, heaven help us.

So why do these proposals concern me so? Some are not too bad in theory, but are high falutin’, idealistic and incompatible with the real world. They will never work.

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I was interested to read an excellent article called Pre-nuptial agreements – a rethink required in this month’s Family Law journal. By Christopher Sharp QC of St John’s Chambers in Bristol, it contains an interesting review of the law in that area.

He begins with the famous case of Hyman v Hyman in 1929, where the House of Lords ruled that two parties could not agree to exclude the jurisdiction of the court, a position which remains to this day.

It means that in England and Wales, a prenuptial agreement will not be automatically upheld. Instead, an agreement of this kind is a matter for the court to take into account.

Since then various cases have sounded judicial warning bells, with judges questioning this approach, while informed judicial thinking has no doubt helped to shape the recent reference to the Law Commission who are examining whether a change of law is required to make these types of agreement automatically legally binding.

Mr Sharp canters through current law, including some well known cases such as Crossley v Crossley,(2008) 1FLR1467, where predictably the Court of Appeal indicated it was likely they would uphold the agreement, recognising that each party was in their own right a multi-millionaire, several times married and divorced. As I have previously posted, unfortunately the court only had the opportunity to withness intitiall skirmishes, as Mrs Sangster did not wait for the final ruling before abandoning her challenege.

It is clear that parties to a PNA should not assume they are unlikely to be upheld. To the contrary, it seems clear that PNA’s will be upheld – or at least parts of them -provided they are not unreasonable.

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An open letter to Rt Hon Gordon Brown MP, Prime Minister.

Dear Prime Minister,

Joshua Rozenberg interviews the Chairman of the Law Commission in today’s Daily Telegraph. Three family law matters are touched upon: reform of ancillary relief law, pre-nuptial agreements and cohabitation law reform.

I note that there will be no reform of the law in relation to the division of a couple’s assets. The courts will continue to apply the Matrimonial Causes Act 1973 and I’m pleased about that. As a family law solicitor, I approve of the discretion given to the judges: it helps couples across the country who don’t have “big money”. I am very much against the equal division of assets as in other countries, because there are occasions when 50:50 cannot be fair. No two cases are the same.

I also note that the Law Commission will be examining the legal status and enforceability of pre-nuptial agreements. I can’t think why valuable public resources are going to be spent helping the very rich to protect their assets. Continue reading »