Thursday, January 03, 2008

Crossley: Prenuptials enforceable?

Further to this post, there is a brief report on the Crossley case in the Times today. Interesting how the Court of Appeal agreed that it was quite acceptable for the lower court to completely short-circuit the ancillary relief procedure, in the light of the prenuptial agreement. I had not realised previously that this 'short-circuiting' had occurred after the husband issued a summons seeking an order for the wife to show cause why the claims should not be resolved by reference to the prenuptial agreement - something no doubt that parties seeking to 'enforce' prenuptial agreements will be doing in the future.

Clearly, the facts in Crossley seem to make it an appropriate case to uphold a prenuptial agreement, and I of course accept that the court is not 'bound' by the procedural rules. However, I remain concerned that the courts seem to be moving closer to making prenuptial agreements enforceable (note the headline to the report: "Court’s power to enforce prenuptial agreement") - something I feel should only be done by Parliament. All the while the courts treated prenuptials as a factor to be taken into account, that seemed to be within the scope of section 25 of the Matrimonial Causes Act ("all the circumstances of the case"), but now the courts seem to be going beyond that, and raising prenuptials to a status above that intended by Parliament. How can a court say that the prenuptial is the overriding factor, when it has not fully considered all of the other factors in the case, which it cannot do until there has been full disclosure?

No comments:

Post a Comment

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.

Note: only a member of this blog may post a comment.