Prenuptial agreements: the English position
Text of the Address Prepared For The ISFL Colloquium on Family Law Toledo, Spain, October 11, 2007
English law has never developed a special regime for dealing with family assets and consequently has no notion of community of property. Whenever ownership of family assets are strictly in issue whether it be in the context of marriage or cohabitation regard is had to the ordinary rules governing property law which in our case rests upon the doctrine of separation of property. Grafted onto this basic position are the court’s wide distributive powers under the court can make property adjustment orders.
Notwithstanding even more recent comments that prenuptial agreements are not enforceable it would be a mistake to think that English courts simply dismiss their relevance. Indeed, even before there had been indications that such agreements were a material consideration in deciding how property may be distributed after the divorce.