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We want pre-nup!

Wednesday, October 20, 2010
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A being considered as having “decisive weight” for the first time. There is so much in this story for law teachers - it’s an example of original precedent, can be argued to be judicial activism (should this have been left to Parliament?), law reform, and so on.

For those of us teaching Contract Law at A2 there is also a lot to ponder. Is a pre-nup not a classic example of a social and domestic agreement? Does this decision prioritise freedom to contract at the expense (potentially) of protecting the weaker party? Does it make matters more or less certain? Does this area of law need codification now?

There is of course the rider that, if unfair, a pre-nup may not be legally binding - but that is no longer the presumption. The court says it will consider matters looking at fairness on a case-by-case basis. However - is this a charter for the rich to pressure those less well-off into contracting out of the jurisdiction of the family courts, or should we allow consenting adults the freedom to contract as they see fit?

For more on the implications of the Supreme Court’s ruling, click here and for more reaction Legal Week have a piece here.

It will be interesting to see what the Law Commission make of all this when they report in 2012!






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