By Family & Divorce Solicitor Sally-Ann Kodurand
A Prenuptial (or Pre-civil Partnership) Agreement is intended to be a contract between two people who are about to enter into a marriage or civil partnership. It’s intended that this ‘contract’ will regulate their affairs in the event of their relationship ending. The contract can cover financial arrangements, and the divorce or dissolution of the civil partnership.
Prenuptial Agreements are not formally binding in England and Wales, although this is currently under review. Fundamentally, a properly prepared Prenuptial Agreement will be upheld by the Courts in England and Wales.
Having said that, the Court has a duty to consider all the circumstances of the case, including any formal Agreements that have been made. Therefore significant weight may be given to a Prenuptial Agreement in any particular case.
See Case Study: UK Divorce Court Upholds Prenup Settlement Amount
Furthermore, the UK Supreme Court’s decision in the case of Radmacher v Granatino in 2010 shows that Prenuptial Agreements (Prenups) have been regarded by the Court as persuasive, and can influence a Judge’s decision, should someone make a financial claim following the divorce.
In this case a Prenup Agreement had been drawn up in Germany. It had been entered into by a French husband and a wealthy German wife. The couple were married in London and were living in England at the time of separation. In both Germany and France such Agreements are enforceable. Under the terms of the Prenup Agreement no financial provision would be made for either spouse in the event of a divorce.
The Court of Appeal in England said that insufficient weight had been given to the existence of a Prenuptial Agreement and that it had become unrealistic for the Courts to disregard Prenuptial Agreements. The decision was upheld by the Supreme Court.
What Conditions Apply?
If you’d like a Prenuptial Agreement to be upheld in Court, you need to prove that the Agreement is fair. To do this, both of you will need to set out your financial circumstances in full and take independent legal advice on the Agreement and its effects. You can negotiate the terms of your Agreement through one of our Family & Divorce Lawyers.
Prenuptial Agreements are generally less likely to be considered to be unfair if they are recent, or if circumstances have not changed since it was made. It’s also necessary to show that both people knew exactly what they were getting into when the Prenup was made, both legally and financially, without any undue pressure being applied.
It’s possible that the English Courts might uphold part of an Agreement while considering a different part to be unfair.
What if there’s a Connection with Another Country?
The Courts have upheld Agreements which state the divorce should occur outside of England and Wales, enabling proceedings to continue elsewhere.
For example, in one case a Prenuptial Agreement stated that the divorce should take place in Israel. This was a major factor in the Court’s decision and led to divorce proceedings that had been issued in England being suspended.
In another case the Judge considered whether provision under the Prenuptial Agreement, which was enforceable in the state of New York, was substantially unjust, compared with the financial settlement the wife would receive in England. The Judge concluded that it was not. It was significant that the Prenuptial Agreement was entered into by the couple following professional advice, meaning both were well aware that it was enforceable in the state of New York, where the divorce was intended to proceed.
What View has the Court taken in Current Cases?
The comments made and decisions taken by the Court consistently follow the principles laid down by the Supreme Court in the case of Radmacher v Granatino. Some examples are:
- A wife asserted that her husband had at least some legal advice as to the financial consequences of divorce, and that he’d had ample opportunity to take such advice. The Court held that even if that was wrong, the Agreement had been freely entered into by the husband, with a full appreciation of its implications.
- The Court found that a marriage settlement entered into by a couple in Scandinavia was relevant but said that the wife had not had a full appreciation of the effects of the settlement.
- The Court said that in order for a Marital Agreement to have influence in England and Wales, the couple must have entered into the Agreement with 'a full appreciation of its implications'.
- The Court took the view that it was an established principle that the Court should give effect to a Prenuptial Agreement unless it would not be fair to do so.
Fundamentally, a properly prepared Prenuptial Agreement will be upheld by the Courts in England and Wales, so getting the best advice is crucial.