In England, pre-nups are not binding. No agreement between spouses can oust the jurisdiction of the court to decide financial provision on divorce. Couples divorcing in England are therefore caught in a system that affords a large amount of discretion to the judge in determining what is a fair financial outcome; all assets, however derived, are potentially vulnerable on divorce in England.
Changes in the approach by the courts to what is a ‘fair’ financial outcome on divorce have led to calls for pre-nups to be binding. However, no action has been taken by the Government yet to change the law to make pre-nups binding in England. This has left it to the judges to evolve the law, and in a number of cases since 2002 the English Courts have increasingly given pre-nups more weight.
