
Since the landmark case of Radmacher v Granatino [2010] UKSC 42, ‘the court should give effect to a Nuptial Agreement that that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.
When considering a Pre-Nuptial Agreement as part of financial proceedings following a divorce, the Court will look at:
- Circumstances surrounding the making of the Agreement that detract from or add to the weight it should be given; and
- Whether it is fair or just to depart from the Agreement in the circumstances at the time the parties are separating.
Factors that may detract from the weight given to a Pre-Nuptial Agreement include:
- Duress, fraud or misrepresentation
- Exploitation of a dominant position
- The parties’ circumstances, i.e. age, mental state
- Legal advice and disclosure
In Radmacher v Granatino the husband was French, the wife was German and the Agreement was signed in Germany. The Court said that the weight given to a Pre-Nuptial Agreement may be enhanced if both parties are from a jurisdiction where Pre-Nuptial Agreements are enforceable and the Agreement was entered into in that jurisdiction. This factor is less significant now that Pre-Nuptial Agreements are more likely to be enforced in England and Wales.
The outcome of Radmacher v Granatino was that instead of the initial settlement awarding £5.8 million to the husband, he received £1 million under the terms of the Pre-Nuptial Agreement.
Pre-Nuptial Agreements therefore carry significant weight in England and Wales. However, to ensure that an Agreement is as effective as possible, it is important for both parties to seek legal advice.
For more information about Pre-Nuptial Agreements, please contact Patrick Mulcare, Head of Family Law at SE-Solicitors, on 01295 204153, or by email at pmulcare@se-solicitors.co.uk