It was recently reported in the media that there is an increased desire for pre-nuptial agreements to include clauses which govern the custody of a couple’s pet upon their separation. Such clauses are well outside the scope of usual clauses in such agreements, since the purpose of a pre-nuptial agreement is essentially to govern the financial arrangements upon separation. However, it is understandable that couples want to make sure that their pre-nuptial agreement caters for everything they consider important. Indeed, disputes about the care of a pet often arise on divorce and some couples even go as far as including specific provisions in their financial settlement about which of them is to care for the family pet.
In a broader sense, this desire to include provisions for pets is perhaps indicative of an increased wish for autonomy by separating couples. Many couples naturally want to plan what is to happen if they separate, and pre-nuptial agreements are no longer only the territory of wealthy celebrities. The pace of change in society is fast, and the current law is struggling to keep-up. In contrast to some of our European counterparts, our Parliament has not yet brought into force legislation to say that pre-nuptial agreements are legally binding. They are still treated as a ‘relevant factor’ when assessing how a couple’s assets should be divided upon their divorce. However, judges are increasingly taking into account pre-nuptial agreements at the time of divorce. This is as a result of the case of Radmacher v Granatino in 2010 in which it was held that pre-nuptial agreements should be binding if they are freely entered into by the parties, with a full appreciation of the implications of signing the agreement, and that holding the parties to the agreement would be fair in the circumstances.
Attempts to reform the current law have been made. The Law Commission’s most recent report proposes that Parliament makes pre-nuptial agreements binding so long as the agreed settlement meets the parties’ respective needs. There has been no recent update from the Ministry of Justice about making this proposal law, and it is hoped that further progress will be made soon, in light of what is arguably an increasing expectation that pre-nuptial agreements are binding.
It is, however, reassuring to know that, whatever the content of your pre-nuptial agreement (whether it includes provisions for care of a family pet or not), the judge who deals with your case will consider the agreement carefully and ultimately try and find a financial settlement which is fair in the particular circumstances of your case.