The Draft Nuptial Agreements Bill and the Abolition of the Common Law Rule: ‘Swept away’ or Swept under the Carpet?

The first clause in the Law Commission’s draft Nuptial Agreement Bill would abolish the common law rule that invalidates agreements contemplating a future separation. The confusion surrounding the current status of this rule is evident from the phrase within the clause, ‘if it still exists.’ By tracing the common law rule to its source, this article demonstrates how key cases have misinterpreted the historical development of this rule and that the rule still exists in terms of judicial reasoning. The broader question as to whether or not the rule should exist is also examined: this needs to be extracted from the confusion and considered afresh, bearing in mind the importance of the rule to the very nature of marriage. The conclusion is that the rule should be abolished by Parliament, but that this decision should be based on the outcome of pertinent deliberations and free from clouded reasoning.