Linda Clegg
Partner & Solicitor
21 Jan, 2011

Interest in Pre-nuptial agreements ("pre-nups") is increasing, especially following the recent well publicised case of Radmacher v Granatino. The current position is that they are not a binding contract such as to take matters out of the hands of the court completely, but are increasingly taken into account by the courtsin making decisions on matrimonial finances. The court is required to take into account all the circumstances of the case, and it may be that the existence of a pre-nup is one of the most important circumstances. The court is also required to consider issues of fairness, and it may be unfair to disregard the pre-nup.

The court is more likely to depart from the terms of the pre-nup if there have been major changes which have not been provided for, such as the birth of children, or if the effect of it might be to leave one party dependent on state benefits.

One of the Judges suggested certain questions should be asked. In summary these are:

• Did the parties intend it to have legal effect?
• Were there any circumstances which would under the general law invalidate a contract?
• Was there anything to suggest that one party was taking unfair advantage of the other?

The case of Radmacher v Granatino was reported in some quarters as a landmark decision which made pre-nups binding. This is not quite correct but the court decided in the circumstances of that case to follow most of the terms of the pre-nup even though it was not very advantageous to the husband and thought there was no reason why the court should not follow the terms of an agreement which had been freely entered into.

In another case called McLeod the agreement was signed on the day of the marriage which would almost certainly normally have made it unacceptable, but after the marriage the parties twice agreed amendments. The court said that pre-nups which are updated during the course of the marriage stand a good chance of being accepted.

The present position in summary seems to be that pre-nups are not binding on the court but the court in exercising its powers will attach considerable importance to a pre-nup which has been properly entered into. Many other countries now recognise pre-nups as fully binding and it seems likely that England will eventually follow suit. The issue is currently being considered by the Law Commission. In the meantime your solicitor can advise on the position and on any proposed agreement.

To discuss the latest developments on pre nuptial agreements (pre-nups) or to speak to a specialist solicitor regarding drafting a pre nuptial agreement, please contact the Head of Family and Probate, Linda Clegg on 0116 2999 199 or email linda.clegg@d-w-s.co.uk

Our costs for pre nups start from £300 + vat