Wedding bells! Are you thinking about a prenuptual agreement?

Prior to 2010, prenuptial agreements were deliberately disregarded by the courts as a matter of policy. This was based on the belief that such contracts undermined the sanctity of marriage by dismissing its foundational principles. Prenups were seen as agreements that preemptively anticipated the breakdown of a relationship, casting doubt on the integrity of a couple’s commitment.

However, this perspective was fundamentally altered by the landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. In this case, the Supreme Court ruled that prenuptial agreements should be upheld if they are “freely entered into by each party with a full appreciation of its implications” unless it would be unfair to uphold them in the specific circumstances. This judgment marked a turning point, signalling the courts’ growing recognition of individual autonomy in financial matters within marriage.

While prenuptial agreements are not automatically binding under English law, they now carry significant weight, provided they meet key criteria. The courts assess whether a prenup is credible and fair, considering the following factors:

1.    Issues such as fraud, misrepresentation, duress, or undue influence.

2.    Behaviour that renders the agreement morally or legally questionable.

3.    The relevant circumstances of the parties at the time the agreement was made.

4.    A lack of full and frank disclosure of financial circumstances by either party.

5.    Situations where significant changes have occurred since the agreement was created, making it unfair to enforce.

By considering these factors, the courts strike a balance between respecting individual autonomy and protecting the economically weaker party from being unfairly disadvantaged.
Prenuptial agreements, when fairly and carefully drafted, can serve as a tool to uphold the sanctity of marriage while safeguarding the interests of both parties. They reflect a couple’s autonomy by allowing them to decide how their financial affairs will be managed in the event of a separation.

Although they are not automatically binding, prenuptial agreements are now highly persuasive under English law. By adhering to the principles established in Radmacher and subsequent cases, couples can create agreements that are both credible and fair, ensuring financial clarity and protecting the rights of both parties.