Pre-Nuptial Agreements have been around for a long time as
couples have been entering into them in the hope that they will
provide some certainty for them if they later get divorced.
In the past, the courts have made it very clear that their hands
are not tied by any Pre-Nuptial Agreement, although they have been
persuaded to give weight to Pre-Nuptial Agreements if certain
factors existed. For example, where they were convinced that
both parties entered into the Pre-Nuptial Agreement of their own
free will, the agreement was made before marriage took place, and
both parties gave full and frank disclosure of their financial
circumstances prior to entering into the Pre-Nuptial Agreement,
then the court would give the agreement some weight.
On the 20 October 2010, the case of Granatino and Radmacher saw
the UK Supreme Court rule that a Pre-Nuptial Agreement is binding.
In that case, the court indicated that Pre-Nuptial Agreements have
decisive or compelling weight, and it would be "natural" to infer
that parties entering into agreements intend that "effect be given
to them".
As a result of this decision it is likely that Pre-Nuptial
Agreements will become more popular as couples entering into
marriage hope to be able to rely on Pre-Nuptial Agreements
more. The effect of this will be that if the marriage does
not work, rather than going through lengthy and expensive
proceedings to resolve who should have what upon divorce, they will
be able to look back at the Pre-Nuptial Agreement and divide their
assets according to its terms.
The courts however are always keen to ensure that fairness is
done and Lord Phillips, President of the Supreme Court, said the
courts would still have the discretion to waive any Pre-Nuptial or
Post-Nuptial settlement, especially when it is unfair to any
children of the marriage. What this means is that if a
married couple with children get divorced, but their Pre-Nup was
made before they intended to have children and no reference to
children was in the agreement, the courts can override the Pre-Nup.
This is on the basis that the agreement does not properly
cater for the needs of the children, and the court can
therefore override the terms of the agreement and make a
division of the assets that does take into account the needs of
those children. Although in the case determined by the
Supreme Court on the 20 October 2010, Ms Radmacher was thought to
be worth £100 million, the principles still filter down to those of
us with more modest means. It appears that we are now
following the approach taken by courts in say France and Germany
where Pre-Nuptial Agreements are considered entirely normal and
routine.
A lot of people consider Pre-Nuptial Agreements to be
unromantic, but with the statistics as they are for marriages
resulting in divorce, it would be unwise not to consider a
Pre-Nuptial before exchanging vows. Pre-Nups can protect both
parties involved, are entirely individual to your circumstances,
and if you do end up getting divorced they can potentially prevent
the pain of drawn out divorce battles. Another more positive way of
looking at it is that entering into a Pre-Nuptial is more romantic
as you are definitely marrying for love rather than money and
financial benefit.
What we have to remember is that Pre-Nuptial agreements are not
acknowledged in the actual law at the present time although the Law
Commission is due to report in 2012 as to whether a change in the
law should be made to ensure Pre-Nuptial Agreements are fully
enforceable(as opposed to the courts retaining some
discretion). What is clear though is that in light of
the case of Radmacher and Granatino, the courts are more likely to
uphold Pre-Nuptial Agreements than ever before.
If you are thinking of getting married and want some more advice
on this or indeed have set a date and wish to know whether a
Pre-Nuptial Agreement will protect you, then please contact Carrie
Wilson