Is a balance achieved between granting parties autonomy over their financial futures and allowing the court discretion to achieve fairness achieved?

Is a balance achieved between granting parties autonomy over their financial futures and allowing the court discretion to achieve fairness achieved?

Posted by on Jul 25, 2016 in News

Many practitioners and family law solicitors would agree that a balance is achieved between autonomy and fairness as the courts do not interfere with the agreement concerning financial provisions unless it is unfair. Lord Wilson’s words in Granatino once were:

“The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy . . . It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best”

The law gives power to the parties because it is themselves who create their own futures. The law is designed to allow spouses to regulate their financial provisions through their own autonomy.

The majority decision in Granatino goes some way to addressing the calls by many commentators for Pre-Nuptial Agreements (PNAs) to be given greater weight regarding their financial affairs.

The latest law commission report on ‘Financial Property and Needs’ came in 2014. There was the proposal to introduce ‘Qualifying Nuptial Agreements’ which is to allow the parties themselves to decide their financial futures through their own agreements. This is still a working progress and is still a long way as Baroness Deech has joined and brought her own proposals to allow parties greater autonomy to decide their futures in their PNAs. Baroness Deech’s proposal on her ‘Divorce Financial Provision Bill’ has passed its 1st reading and now is awaiting a 2nd reading in the House of Lords.

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