Our report contains a bill on marriage agreements that would introduce qualified marriage contracts in England and Wales. We have two important policy recommendations here. On the one hand, it is the legal confirmation of the abolition of the rule of public order according to which contracts that contemplate a future (non-effective) divorce are non-actuarian – a change that will probably be, even obiter, produced by the Supreme Court of Radmacher/Granatino. The second relates to the introduction of “qualifying marriage contracts” (which readers may wish to refer to “QNAs” or “QNups”) that allow couples to deduct themselves from the sharing element of financial pension, but not from the pension for their children or the financial needs of the other. In October 2009, the Commission launched a project to examine the status and applicability of marital agreements, including pre-marital, post-marital and separation agreements. This project was originally referred to as the “proposed marital real estate agreements.” It is now known as the “marriage property, needs and agreements project” because the scope of the project was expanded during the consultation process. In January 2011, we opened a consultation that reviewed the existing Marriage Property Contracts Act and discussed reform options. Sarah Anticoni, partner of Charles Russell LLP, said: “Pre-marriage and follow-up contracts have been renamed into qualifying marriage contracts. To be binding, these agreements are subject to safeguards to protect the financially weak party. No document can exclude from the resources of families the responsibility to meet the needs of both parties and those of children. Parties cannot leave their spouses without anything and expect the state to accept the bar.
The law will remain as it has been since 1973, with judges having the power to exercise discretion over how to allocate each family`s resources in the event of divorce in order to meet needs. It seems clear that it will be possible to exclude any claim for compensation or sharing of acquired or non-marital property (previous successions or divorce agreements). If the bill is successful, such agreements are currently unenforceable, but the Radmacher/Granatino Supreme Court ruling  UKSC 42 said they should have “decisive weight” unless the agreement is unfair.