Pre Nuptial Agreements – Post Radmacher

Pre-nuptial agreements are formal written agreements between people who are getting married, setting out who will own what when they are married and attempting to set out what will happen if they divorce.  Pre-civil partnership agreements are similar to pre-nuptial agreements but are between people who are about to enter into a civil partnership.

As the law currently stands in England and Wales, pre-nuptial agreements are not legally binding. However, the rise in popularity of pre-nuptial agreements has come following the Supreme Court ruling of Radmacher –v- Granatino [2010] UKSC 42 when the court upheld the terms of the pre-nuptial agreement of German heiress Katrin Radmacher.  This case illustrates that a pre-nuptial agreement will be upheld, save where there are significant reasons to disregard the agreement or where it is apparent that one party has been placed under duress or where misrepresentation is evident.

It is crucial that in order to ensure the best possible chance of success, the following safeguards need to be applied:-

• Both parties should have obtained independent legal advice.
• Children should be adequately provided for.
• The agreement must not be profoundly unjust.
• Full financial disclosure must have been made.
• The agreement must have been drawn up at least 21 days prior to the marriage.

The court will retain the power to ignore or vary the agreement but the clear message to people entering into a pre-nuptial agreement is that it is more likely than ever that they will be held to its terms.

For more information contact Lisa Kemp 

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