If ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, it seems to me that this is just such a case.
So said Lord Justice Thorpe in the Court of Appeal yesterday, in the case of Crossley v Crossley. The case concerned the appeal by Mrs Crossley against a decision to short-circuit normal court procedures, which Mr Crossley had argued was appropriate because the marriage was short and childless, both parties had independent wealth and a prenuptial agreement had been signed. In upholding that decision, the Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.
Lord Justice Thorpe apparently also called for legislation to clarify the status of prenuptial agreements, although it bothers me that this decision may have already elevated their status beyond what current legislation provides. Is it not for Parliament rather than the courts to decide such fundamental issues? Of course, the situation is not helped when Parliament seems quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system, leaving the courts to keep up with the ever-changing Zeitgeist.
[For update, see this post.]