A decade of pre-nuptial agreements

Very rarely, cases come along that change the landscape of family law.

One such example is the Supreme Court case of Radmacher v Granito which changed things substantially.

The case was concerned with the validity of pre-nuptial agreements.

Up until that point, pre-nuptial agreements had been seen as contrary to public policy. It was argued that they were unfair in that they favoured the financially stronger party and that they almost encouraged divorce.

The Radmacher case considered whether a pre-nuptial agreement entered into before the parties married should be followed when the parties divorced. The wife was the heir to a large family fortune and sought to protect that. They had been married almost 20 years and had 2 children together.
Whilst initially the Court gave little weight to the pre-nuptial agreement, the Supreme Court took a different approach and stated that the parties should be held to their agreement providing it was:

“freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”

As such, pre-nuptial agreements, whilst they have not been consolidated into legislation, are very often upheld providing a number of factors are met. These include:

  • That the agreement was freely entered into without any undue pressure, fraud, duress, misrepresentation or any unconscionable conduct. As such agreements should be entered into with sufficient time for them to be properly considered without anyone being “shotgunned” into agreeing to them.
  • The parties must engage in full financial disclosure and both must have independent legal advice.  They must fully understand the implications of the agreement.
  • The agreement must be fair at the time of the divorce. As such the agreement cannot replace the jurisdiction of the Court. If the agreement is plainly unfair to one party it will not be followed by the Court upon divorce.

Since the case of Radmacher 10 years ago, more and more cases have come before the Court with considerations of the weight to be given to pre-nuptial agreements.

The Courts now very often give weight to the agreements providing they are procedurally and substantially fair to the parties.

More recently, in 2014, the law commission prepared a report which gave certain recommendations on the issues of pre-nuptial agreements and set out certain criteria which should be followed for the agreement to be treated as a qualifying agreement. These include that the agreements must be contractually valid, that they must be executed as a deed, that they should be executed at least 28 days before the marriage, that there has been material disclosure of each other’s financial position and that each party has independent legal advice.

We at BTMK regularly advise our clients on both pre and post nuptial agreements. The move towards upholding these by the Courts is a positive step and one that allows parties to deal with their own finances amicably at the outset of their marriage.

If you would like to discuss these agreements, or any issues relating to family law please contact Lee Wilcockson or Priti Mayor at BTMK. We offer all of our matrimonial and family law services from our offices in Southend-on-Sea, Leigh-on-Sea, Rayleigh and London and we can arrange appointments virtually during the current Covid-19 pandemic. Live chat is available on our website (24/7). We can be contacted by e-mail at [email protected] and our 24/7 telephone number is 03300 585 222.

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