Beginning Family Law by Herring Jonathan

Author:Herring, Jonathan
Language: eng
Format: epub
ISBN: 978-1-317-67645-4
Publisher: Taylor & Francis (CAM)

PRE-NUPTIAL AGREEMENTS

Key definition: pre-nuptial agreement

A pre-nuptial agreement, sometimes called ‘a pre-nup’ for short or a pre-marriage contract, is an agreement entered into by a couple shortly before marriage, which is designed to determine what will happen to their property in the event of a divorce. It might, for example, limit the amount of money one spouse can claim against another.

For a long time pre-nuptial contracts were held to be unenforceable in English courts. They were seen to be contrary to public policy in that they sought to remove from the courts the power to determine what order was appropriate following a divorce. In the following decision the courts changed their approach.

KEY CASE ANALYSIS: Radmacher v Granatino [2010] UKSC 42

Background

• The husband was French and the wife a wealthy heiress. They signed a pre-nuptial agreement, which said that in the event of a divorce no claim could be brought by either party.

• They separated after eight years.

• The wife sought to rely on the pre-nup to defeat the husband’s claim for a share in her wealth.

Principle established

• The majority of their lordships agreed that if the agreement is freely entered into and with a full appreciation of the implications the courts would give effect to it, unless it would not be fair to hold the parties to their agreement.

• In this case the husband was aware of the significance of the document and it would not be unfair to limit his award to the terms set out in the agreement.

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