Pre-Nuptial Agreements

Oral Answers to Questions — Foreign and Commonwealth Affairs – in the House of Commons at 4:31 pm on 3 July 2007.

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Photo of Quentin Davies Quentin Davies Labour, Grantham and Stamford 4:31, 3 July 2007

I beg to move,

That leave be given to bring in a Bill to provide for the enforceability of pre-nuptial agreements;
and for connected purposes.

The Bill would give legal effect to pre-nuptial agreements— [Laughter.]

Photo of Quentin Davies Quentin Davies Labour, Grantham and Stamford

Thank you, Mr. Speaker. I emphasise that the Bill is a purely permissive or enabling measure. We should be especially careful when introducing legislation that would impose obligations on the citizen, thereby constraining his liberty. My Bill does nothing of that kind and simply adds to the liberty of the citizen.

The measure will provide the citizen with an option in the conduct of his personal affairs that he currently does not have. It will make it possible for him, when he contemplates entering into a marriage—and, though the short title does not make it clear, when he contemplates a new relationship or he or she is in a relationship—to make an arrangement, which will subsequently be enforceable by the courts, to determine in advance the basis— [Interruption.]

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

Order. I know that the vast majority of hon. Members are courteous, but loud conversations are taking place. That is not good for the democracy that we hold so dear.

Photo of Quentin Davies Quentin Davies Labour, Grantham and Stamford

One or two Conservative Members are understandably sore about some home truths that I had to tell them the other day. I sympathise with that reaction, which does not entirely surprise me.

As I said, the object of the Bill is to give people an option that they do not currently have, thereby adding to the liberty of the subject. It means that, when people are in a relationship or contemplating a relationship or marriage, they can decide with their partner or potential partner the exact basis for the distribution of any assets or liabilities if the relationship fails. It is important to emphasise the voluntary aspect of the proposals.

My Bill would remove two major anomalies of the present time—most significantly a legal anomaly. At present, people can contract in all sorts of ways and reach agreements that will be enforced in the courts—purchase and sale contracts provide a good example, but people can also contract to make agency agreements, exclusivity agreements, service agreements, employment contracts and all sorts of agreements to do with the management and distribution of intellectual property. In all those cases, they can do so with the expectation that if there is a dispute, the agreement will be enforced subsequently in a court in accordance with its terms and subject to normal common-law safeguards, which would certainly apply to my Bill. I refer to safeguards such as no undue influence, no material non-disclosure and so forth. Many contracts will be enforced by a court even if they are purely oral. It is only in the event of a contract that provides the transfer of real estate that a court will require a written agreement or a written contract.

There is only one other area where a signed agreement or a contract otherwise drawn up is not enforceable in law—and that is a gambling contract or arrangement. I happen to sympathise with that exception to the law, but I simply cannot think what gambling has to do with pre-nuptial agreements or why pre-nuptial agreements should be treated in the same fashion.

There have been a number of high-profile cases in the matrimonial courts recently. One thinks, for example, of the Miller case, the Charman case and the McCartney case, which is presently before the courts. Colleagues may think that those cases have inspired me to bring forward this measure at this moment, but that is not the case. In the context of some of these high-profile cases, it is true that judges have expressed the view that the present law is very unsatisfactory and unfortunately sends a signal to the public that one way of becoming supremely rich in one's own right is to marry someone who is very rich, stay with him or her for a few years and then walk off with half the proceeds. That is clearly an undesirable and unattractive aspect of the present law.

However, it was not those particular cases but rather the situation of people on very modest means that inspired me to propose this measure. I am thinking of people who have just a few assets, perhaps a family house, and who want to protect those assets not only for their own sake but more especially—I am thinking of specific cases now—to protect their children, perhaps their children from their first marriage. The first marriage may have ended in divorce or widowhood and the person may subsequently fall in love with somebody else and want to live with or marry somebody else— [Interruption.] Indeed, such changes do happen in life. Such people may want to protect the children from their first relationship from any dispute that might subsequently occur if the relationship breaks down. That is an important aspect of the potential injustice that currently occurs.

There have been suggestions that the law should be changed to provide the same regime as currently applies to married couples—in respect of the distribution of assets in the event of a breakdown—to co-habitees who are not married. I am not in favour of going down that road— [Interruption.] I have to say that if the House in its wisdom decided to go down that road one day, it would seem to be particularly important to have on the statute book something like the mechanism that I am currently proposing. Otherwise people currently in such a relationship would find that they faced an invidious and nightmarish choice of either ending the relationship or finding retrospectively that they face a whole number of risks and liabilities that they could not previously have contemplated and would never have voluntarily entered into.

Let me make one final point. I said that the most important anomaly that I was addressing with this Bill was a legal anomaly. I believe that to be the case, but the measure also resolves a curious geographical anomaly. In other major common law jurisdictions such as the United States and Australia, the option to sign pre-nuptial contracts exists and they are indeed enforced in law. That is also the case in a number of European Union countries where Roman law applies. One might think that the need for a pre-nuptial agreement would not be so great in such countries, because the relevant principle of Roman law states that, if a marriage is dissolved, the assets belonging to each party when the marriage was contracted are reserved to that party. Any dispute over distribution applies only to assets and liabilities that were accumulated during the course of the marriage. That principle applies in Scotland, which also has a legal system based on Roman law. Although the need for this measure might be less great in some other EU countries, the option nevertheless exists for their citizens to use it. It does not exist in England or, indeed, in Scotland.

It is time for the House to consider this measure; it is time that it was brought in. I have the honour to commend it to the House.

Photo of John Redwood John Redwood Conservative, Wokingham 4:40, 3 July 2007

I quite understand why someone who had been in a relationship for 20 years—a marriage that had ended suddenly in acrimony and bitterness—might want legal reassurances before entering a new marriage. They might wish to be reassured that whatever assets they were taking with them would not be abused by the new party. They might wish to lay down what their future course might hold in the new marriage. They might wish to know whether there were tasks or functions ahead that were particularly relevant to the decision that they were making.

However, I rise briefly to oppose the Bill because I fear that it has come all too late for the hon. Gentleman, who has already changed his marriage before his Bill has gone through.

Question put, pursuant to Bills and nomination of Select Committees at commencement of public business">Standing Order No. 23 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business), and agreed to.

Bill ordered to be brought in by Mr. Quentin Davies, John Bercow, Chris Bryant, Mr. Alistair Carmichael, Paul Farrelly, Mr. Edward Garnier, Dr. Julian Lewis, Ian Lucas, Rob Marris, Mr. Michael Moore, Mr. Robert Syms and Keith Vaz.