Talitha Brookman discusses pre and post nuptial agreements and how they apply in English law. Published in Independent Practitioner.

Historically, pre-nuptial agreements in England and Wales have not been given the same weight they are in countries with similar legal systems, such as Australia and the United States.

In England or Wales, even though a couple has a pre-nuptial agreement a judge will still decide to what extent they take the agreement into account. That being said, there are certain factors that might influence a judge considering a pre-nup:

– Did both parties seek legal advice prior to the agreements?

– Was there full disclosure of each party’s assets?

– Did pre-nup negotiations take place well in advance of the marriage (so neither party would have felt under duress or hurried to make a decision)?

However, even with these factors considered, a judge may still choose to ignore the contents of the pre-nup and take their own view on any financial award.

Possible changes to pre-nups caused by the Radmacher -v- Granatino case

In the case of Radmacher -v- Granatino (discussed here in more detail) the High Court granted husband (Granatino) a settlement of £5.6m from his multi-millionaire wife, Katrin Radmacher. True to form for English law, this decision did not reflect the pre-nup that stated neither party would seek maintenance.

However, Radmacher successfully appealed. This decision is especially surprising due to Granatino not receiving legal advice prior to the pre-nup and neither party having fully disclosed their assets. The judges in the court of appeal made it clear that a pre-nuptial agreement entered into freely should be a decisive factor in any settlement. In practice this now suggests pre-nups carry a lot more weight in England and Wales than they ever have. However the case is now awaiting a decision from the Supreme Court.

Pre-nup agreements for second marriages

The court of appeal also discussed pre-nups in the context of second marriages. Their suggestion was that in many instances, more mature couples considering re-marrying would want to protect their current assets, in particular for the benefit of any children from previous marriages. Therefore a carefully drafted agreement should be available as an alternative to the stress caused by going to court.

The exception to the rule: child maintenance

Child maintenance issues remain outside the remit of a prenuptial agreement. A pre-nup should leave the decisions regarding child maintenance and associated housing costs to the courts. If a pre-nup does not reflect this approach, it stands a greater chance of being struck down completely, rather than the agreement being seen primarily as between two adults.

What are post-nuptial agreements?

As the name would suggest, post-nuptial agreements are entered into after the couple is married. This may be to re-affirm a pre-nup or to avoid the uncertainty and expense of matrimonial litigation should the marriage break down. Due to the circumstances in which a post-nup is entered into (i.e. after marriage), it may well be binding even if it does not reflect what a court would have decided.

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