Connect Article November 2024
What separates some marriages from others is the use of a pre-nuptial agreement or ‘pre-nups’. Marital agreements (couples may also enter into a post-nuptial agreement), have become more widely considered since a 2010 case called Radmacher v Garantino [2010] 3 WLR 1367.
The effect of Radmacher was to confirm that the terms of pre-nuptial agreements are a factor to be taken into account by the Court upon divorce, providing that certain terms had been met.
Why sign a pre-nup?
The main function of a pre-nup is to create certainty for the couple (and their wider families) in the event of their divorce, although one party may feel somewhat happier with the prospect of signing a prenup than the other.
Pre-nups are often used to protect dynastic or inherited family wealth, ring-fencing certain assets that existed prior to the marriage, in the event of divorce. They provide clarity about which party will retain certain assets, such as properties and cars. They can even include what will happen to the engagement ring upon separation or divorce.
Radmacher
In Radmacher, the French husband and German wife married in 1998, having signed their pre-nup three months before the marriage. Instigated by the Wife who was he heir to a sizeable family fortune, the prenup stated that neither party would acquire
the other’s property during the marriage, nor upon its termination. The case was heard in London, commonly known as the divorce capital of the world”.
After having two children together, the couple separated in 2006 and the Husband applied for financial orders. Crucially, the financial award to the Husband would have been funded by the German Wife’s inheritance. She appealed the decision.
The Court of Appeal held that the prenuptial agreement should have been given greater consideration, but the husband also went on to appeal its decision. The Supreme Court dismissed the husband’s appeal. It decided that parties to a nuptial agreement would be held to their agreement upon divorce, provided that the agreement 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”.
Validity
A meaningful pre-nup will also take into account:
- the level of financial disclosure made by both parties about their financial position, and the assets that they own or have an interest in (wherever these are in the world);
- whether each party to the marriage had the opportunity to take independent legal advice about the agreement to enable them to negotiate and understand its terms; and
- whether one party put pressure on the other to sign the document, causing one of the couple to “sign under duress”.
Conclusion
Pre-nups are perhaps best described as “guiding, but not binding”. A well-considered pre-nuptial agreement can offer reassurance to the couple, as well as a starting point for the Court to review should divorce proceedings be issued. This article does not constitute legal advice. Please contact Advocate Chris Hillier on chris.hillier@ingramadvocates.com for a confidential discussion about family law matters.
This article is intended for guidance purposes only and does not constitute legal advice. Anyone seeking family law advice can call Chris, in confidence, on 01534 833 888.