Validity of pre-nuptial agreements

Following the landmark ruling of the Supreme Court in the case of Radmacher v Granatino [2010] UKSC 42; the law regarding the validity of pre-nuptial agreements has changed.

Previously, it was believed that pre-nuptial agreements were bad for ‘public policy’. They were therefore only given limited scope as to the intention of the parties when deciding upon what was or were not ‘marital assets’.

Subsequent to this ruling, pre-nuptial agreements are now fully enforceable in English law providing that the criterion is met. This, for ease of reference, is:

The agreement has been freely entered into and both parties understand the consequences of signing the agreement (referred to in the judgment as being ‘freely entered into by each party with a full appreciation of its implications’);

Whether, in entering into the agreement, one party has been misinformed or deceived by the other. There must, therefore, be full information provided that is material to the substance of the financial assets;

If there are any pressures applied to the other person entering into the agreement then the agreement will be unenforceable in law; and

A general overview as to the circumstances of the parties, taken into account any children, the manner in which their financial dealings appear, and whether in enforcing the agreement, one party will be left in financial ‘need’.

The basic premise of a pre-nuptial agreement would appear to fall squarely in the present regime of Family Justice. It caters for the Children of the Family, as-well-as placing restrictions upon one spouse unreasonable benefiting at the expense of the other.

However, it is clearly worth noting at this stage that a marriage is ‘the voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in the case of Hyde v Hyde). What therefore comes of this old legal notion?

Jonathan Salter, Family Law Consultant

jsalter@astonbond.co.uk