The Law Lords Mess It Up Again: Pre-Nuptial Agreements

The eagerly awaited decision of the Privy Council in MacLeod v MacLeod was published on the internet today.

When I say "eagerly awaited" I mean by family lawyers. It was the first opportunity for some time that the law lords have had to consider the validity of pre-nuptial/pre-marital agreements. Some lawyers had speculated that they might grasp the nettle and make them enforceable. They did not. Paragraph 31 is as follows:

The Board takes the view that it is not open to them to reverse the long standing rule that ante-nuptial agreements are contrary to public policy and thus not valid or binding in the contractual sense. The Board has been referred to the position in other parts of the common law world. It is clear that they all adopted the rule established in the 19th century cases. It is also clear that most of them have changed that rule, and provided for ante-nuptial agreements to be valid in certain circumstances. But with the exception of certain of the United States of America, including Florida, this has been done by legislation rather than judicial decision. There is an enormous difference in principle and in practice between an agreement providing for a present state of affairs which has developed between a married couple and an agreement made before the parties have committed themselves to the rights and responsibilities of the married state purporting to govern what may happen in an uncertain and unhoped for future. Hence where legislation does provide for such agreements to be valid, it gives careful thought to the necessary safeguards.

Thus it remains for parliament to address this issue but with no liklihood that parliament will do so in the foreseeable future.

Do they remain influential?

The Privy Council referred to Crossley v Crossley where it was said that a pre-nup could be a factor of "magnetic importance" but there is no explicit endorsement or condemnation. Thus we do not know whether that approach survives.

Lawyers have plenty of room therefore to argue it both ways as to what the law lords impliedy meant about the Crossley decision.

This has happened before. Hand the law lords a landmark case in family law and they bugger it up by introducing further confusion rather than giving clear guidance. The reference is, of course, to White v White. There are now many Court of Appeal decisions relating to how the delphic utterances in that case regarding, for instance, the yardstick of equality and the disapproval of sex discrimination apply in completely different circumstances to a family run farming partnership.

They did change the law, however; in relation to post-marital but pre-separation agreements. See later post.