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Pre-nuptial agreements: where are we now?

Pre-nuptial agreements are becoming increasingly popular and while it is true that the mere existence of such an agreement will not automatically mean that it is binding, the willingness of the judiciary to give weight to individuals' autonomous decisions is clear and is evident from a number of cases following the Supreme Court's decision in Radmacher v Granatino (2010) UKSC 42.

In V v V [2011] EWHC 3230 (Fam) which concerned an appeal against a financial remedy order by a district judge, the appeal was allowed because the requisite importance to the marital settlement had not been given. The court held that the district judge had taken a pre-Radmacher approach and that this had to be overturned.

Charles J confirmed that Radmacher necessitated a significant change to the impact of prenuptial agreements. At the heart of that change was the need to recognise that weight should be given to the autonomy of the parties. The fact of an agreement could alter what was a fair result and effect a different outcome to the one that would otherwise have been made. Radmacher he said, effectively added another rationale or principled approach to the reasoning to be applied in the balancing exercise under the statutory test.

In the case of Z v Z [2012] 1FLR 100 Moor J applied Radmacher saying it was fair to uphold the French Separation de Biens agreement insofar as it did not exclude the "sharing" (although the situation might have been very difficult if the agreement had purported to exclude maintenance claims in the widest sense). Although the wife had given up her job and had children, those were both factors that formed part of her needs case, and did not affect the fairness of upholding the agreement.

In B vS [2012] 2FLR502 Mostyn J distinguished between a negotiated prenuptial agreement which specifically contemplated divorce and which sought to restrict or influence the exercise of discretion to which the law gave access and an agreement made in a civil jurisdiction which adopted a particular marital property regime. In this case no weight was attached to the alleged tacit agreement between the couple to adopt a matrimonial property regime of separate property when they married.

This article first appeared in the Boodle Hatfield Contentious Trust & Estates and Family Newsletter in April 2013.

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