Are Pre Nuptial Agreements Worth It?

It was hoped that the long-awaited decision in the case of Radmacher v Granatino in October 2010 would answer the above question. The case established the following point of principle:

‘The Court should give effect to a nuptial agreement 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.’

The answer appears to be therefore ‘probably!’

Couples planning to marry have long sought to agree who should have what in the event of the relationship going wrong, but the Divorce courts in England have the discretion to do whatever is considered reasonable in all the circumstances of the case when a couple divorce . Nevertheless the Courts have increasingly been willing to look at any pre-nuptial agreement entered into by the parties when considering all the circumstances of the case but the weight (if any) attached to the terms of the agreement differs from case to case. There is no law in England which states that couples are absolutely bound by any pre-nuptial agreement they entered into before they married.

However as society changes and with Divorce becoming sadly ever-more commonplace, many believe that couples ought to have the right to enter into a contract with their partner to sensibly work out the terms of any divorce settlement in the unfortunate event of the relationship just not working out. It is felt therefore that any move in the law to make pre-nuptial agreements absolutely enforceable in the event of Divorce would merely reflect the reality of modern-day living.

The fact is that despite making vows to stay together ‘til death us do part’ it makes sense to attempt to lay down an agreement for the division of assets on divorce in the hope that this will serve to cut down the bitterness and trauma of a marriage breakdown.

The case of Radmacher does not reflect a change in the law but it does provide the clearest indication from the English Courts yet that in the right circumstances a nuptial agreement in the right circumstances will be respected and upheld by the courts. However until parliament introduces legislation to firmly lay down the principles under which a nuptial agreement will be fully recognised by the courts then couples cannot be certain that the terms of their agreement will be absolutely binding.

However does that mean that couple should ignore the idea of entering into such an agreement? Absolutely not. Pre-nuptial agreements are likely to be respected by the divorce court particularly in short marriage and where the contribution in money/property of both parties to the marriage is clearly defined in the agreement. Also both parties ought to take independent legal advice before entering into the agreement

For more details or assistance with pre-nuptial agreements please contact Anita Toal 01775 722261 or email her on anita.toal@maplessolicitors.com