Whoo-hoo! Sounds like there's a judge with his head screwed on!
Of course the reason why our government refuses to contemplate recognising pre-nup's is because messy divorces earn their colleagues in the legal profession a fortune and give Family Courts and all manner of social workers the opportunity to stick their noses into people's lives and mess them about.
Let's not forget that in many civilised countries there are default statutory pre-nups, where the couple can choose from a few basic options, ranging between a) everything to be split 50/50 on a divorce and b) complete segregation of all assets and income from day 1, no sharing on divorce. Or you can do a customised one.
I'd also recommend
- adding another box to say whether maintenance will be payable or not post-divorce;
- making the couple agree how it will be decided who gets the kids (e.g. automatically the lower earner, or automatically the mother, or automatically the father once kids have reached a certain age. I prefer 'toss-of-the coin', myself, on this one - reduces moral hazard aspect); and
- having a default statutory rate of child maintenance of say £40 per child per week up to age 18 (which couple can vary if they wish to be a % of non-caring parent's income, for example).
That's that fixed.
Thursday 20 December 2007
"Top UK judge backs pre-nuptials"
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4 comments:
Legalising any form of voluntary associations is a good thing in my book. And it's a very nice book.
Voluntary associations ARE nearly all legal, SC. If you want a pre-nup to be legally binding, at the moment all you should do is ...not get nupped. Just leave your private contract in place and don't go complicating it with one-size-fits-nobody legal evolutions in public law which muck up what you had in mind.
If a simulacrum of marriage is what you fancy, have a nice blessing or make your own up. That was very popular in the early 1970s with people solemnizing unions over motorbike manuals. The modern pagans are forever having 'handfasting' ceremonies.
There could still be arguments in the event of a split, but it would be a matter of contract and land/property law (except in the matter of children where family law might intervene, depending on the situation at the birth of the child) between the couple.
Essentially, a pre-nup would be a binding contract except where it clashed with existing land law. The provision in the pre-nup would then be challengable.
Since increasingly the beneficial aspect of being legally married is slight (the inheritance laws are one advantage - perhaps Mark can advise where/if there are still tax advantages) I'm danged if I can see why people are still tying themselves in knots over the m-word, except perhaps where there is an issue of the acquisition of rights of residence for non-EU partners.
The FT story somewhat overstates the case; pre-nups have always been available to the courts and may be taken as an expression of intention, but the essence of them is they are not binding because the public contract of marriage over-rides that, the way marriage over-rides a previous will.
What Lord Thorpe's words actually mean is "You are an old fool who couldn't spot an obvious gold digger and are now whining about it. She's a harpie who already has 18m, so she's hardly short of face-packs. Get out of my court room, the pair of you, and negotiate something half-way sensible or else I'll make sure the rapacious lawyers who fancy a cut of this all will be very sorry indeed. And don't waste my time - there are a queue of people who deserve a bit of justice and look to me to find it for them.
Go on, hoppit, the ruddy lot of you."
The present danger is that the Law Commission and that greedy wotname of a lawyer (forget her name) are trying to impose contracts retrospectively and involuntarily so that you could accidentally find yourself married or civilly partnered when you failed to kick out a lover at 1 year 11 months. You know how easy it is to get a date wrong.
In Scotland only the moolah earned during marriage is up for grabs. What you took into the marriage remains yours.
WOAR, glad to see you commenting here again!
If you ask me to advise, I must say that overall, the UK's tax, welfare and pension laws clearly and quite massively discriminate against cohabitation, let alone against marriage (The modest IHT breaks for married/CP couples is worth tuppence ha'penny in the grander scheme of things - IHT is a totally evil tax anyway, that raises roughly the same as the TV licence fee, both of which ought to go).
D, in Germany (for example), there is a middle default option that does exactly what you say happens in Scotland. If people choose that, then fine, THEY have chosen that - it has not been imposed upon them. And it wouild be on my brief list of options.
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