Prenuptial agreements may no longer be the preserve of the rich and famous when a new draft law comes into force in England and Wales.

Currently, a prenuptial agreement, in which a couple state who is to receive what assets if they divorce in the future, is only legally binding if it is fair to the parties and fairness has to be decided by a judge. Under the new proposals, a qualifying prenuptial agreement signed not more than 28 days before the date of the marriage or civil partnership will automatically be legally binding on the parties.

It is expected that some couples will want to sign a prenuptial agreement in order to protect existing wealth and future inheritances as well as make provision for children. The advantage of having such an agreement is that of certainty of outcome. Under the current law, the English courts have a very wide discretion on divorce to deal with maintenance, lump sum payments, properties and pensions etc. The lack of any set formula for “who gets what” can lead to cases being taken to court, a process which is costly, both financially and emotionally for the parties. In contrast, countries such as Spain have a matrimonial property regime which applies to the parties when they marry. This means that unless they opt otherwise at the time of marriage, any assets they bring into the marriage remain their own property but any that they gain together during the marriage is automatically split 50:50 on divorce.

It remains to be seen, if and when the bill becomes law, how popular prenuptial agreements will become and how lawyers will set about drafting them. There will have to be an element of “crystal ball gazing” as no-one knows what the future will hold for the couple in terms of their health, wealth and family circumstances.

For help and advice on family and matrimonial issues, always consult a qualified and regulated lawyer.