Divorce lawyers disappointed by judges' refusal to clarify status of pre-nups

Divorce lawyers have expressed disappointment following the refusal of senior judges to support the enforceability of pre-nuptial agreements in what was expected to be a landmark case.

The Privy Council found in favour of Roderick Macleod who was contesting the decision of two Isle of Man courts which had required him to pay his ex-wife Marcia a sum in excess of that stated in their agreement.

The agreement in question, however, had been amended twice in the course of their marriage meaning it is considered post-nuptial rather than pre-nuptial agreement.

The judgement means that pre-nups retain their ambiguous status in the UK where they are used as one of a number of factors taken into account when deciding a settlement. The five judges who heard the case said that a decision on the enforceability of pre-nups was the responsibility of parliament, rather than the courts.

Because the post-nup was found to be enforceable, Mrs McLeod received £2.2 million rather than the £5 million that she sought.

"Although decisions of the Privy Council are not binding on English Courts they may be highly persuasive,” says Sarah White, a divorce lawyer at City law firm Dawsons LLP. “This decision does, therefore, give some clout to post nuptial agreements that are kept up-to-date and to pre-nuptial agreements that are then varied during the course of a marriage to take account of the parties’ circumstances.”

“This allows couples to regulate, during the course of their marriage, how they wish their finances to be divided, should they separate, rather than having to seek the intervention of the Court to decide what it thinks is a fair outcome. The decision in Mcleod-v-Mcleod does, however, still leave the pathway open for a definitive ruling to be made in relation to the legal status of pre-nuptial agreements."

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