Prenuptial and Pre Civil Partnership Agreements

Until recently, prenuptial and pre-civil partnership agreements were not enforceable in England and Wales.  This was in contrast to the position in other European jurisdictions.

In the recent case of Radmacher v Granatino, the Supreme Court provided long awaited guidance about the legal effect of prenuptial agreements in this country. 

Mrs Radmacher was a German heiress and Mr Granatino was born in France.  The parties entered into a prenuptial agreement which provided that the husband would not make any financial claims against the wife on divorce.  Following the parties’ separation, however, the husband did apply for financial relief in the High Court and was awarded approximately £5m.  The Court of Appeal reduced this to £1m and the husband then appealed.  The Supreme Court upheld the decision of the Court of Appeal and agreed that there were no factors which would render it unfair to hold the parties to their prenuptial agreement. 

Although the Court fell short of finding that prenuptial agreements will be binding in every case, a number of factors were identified which will assist in determining what weight should be given to any prenuptial or pre civil partnership agreement.

The case law now says that the Court should give effect to a nuptial agreement 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 deciding whether it is fair to hold the parties to a prenuptial agreement, a number of factors have been identified as relevant.  For example, both the husband and the wife must enter in to the agreement of their own free will.  Duress or undue pressure could reduce the weight that is given to the agreement and could even negate it completely.  The Court will look at the parties’ circumstances at the time the agreement was entered into (age, maturity and emotional state) in considering whether the parties understood the implications of the agreement and whether they intended it to be effective.  Whether the parties obtained independent legal advice and the level of financial disclosure will also be relevant. 

Any children of the marriage remain an overriding consideration and, as discussed, the terms of the agreement must still result in a ‘fair’ outcome.  The closer the effect of an agreement to an outcome that the Court would find to be fair, the more likely it is to be given decisive weight. 

While this case brings the law in England and Wales more into line with our European counterparts, the fairness caveat remains a device whereby the Court can impose a financial settlement different to that set down in any agreement.

We also advise parties wishing to enter into post nuptial agreements, which are based on the same premise as prenuptial agreements but entered into after the parties marry.

If you would like advice about entering into a prenuptial or pre-civil partnership agreement please contact Jane Keir on 020 7814 1273 or email jkeir@kingsleynapley.co.uk.