Pre marital agreements are very much a buzz word brought to the forefront by the famous case of Radmacher v Granatino in 2010. I will recite the facts briefly in that this involved an agreement entered into in Germany by a German wife and a French husband. The wife was from a wealthy family and her father wished to protect the family wealth and she said she wanted to be sure her husband was marrying for love and not money. The agreement provided that neither party would have any interest in assets brought into the marriage by the other or built up during the marriage and there would be no rights on death.
The agreement was given decisive weight by the Supreme Court and the case established a two-part test which the court is drawn to as well as the factors set out by statute. The factors that have to be assessed are was the agreement entered into by the parties with full appreciation of the implications and would it be fair to uphold the agreement?
This was a far-reaching decision for Britain although Europe is mainly governed by a marital property regime and subsequent cases since Radmacher have tended to have a European element.
Family law practitioners are still very cautious and advice has to be that pre-marital agreements are not necessarily enforceable. It is not possible to oust the jurisdiction of the court and at very least the two part test identified above must be satisfied.
The writing on the wall seems to be that Radmacher is the way forward. It is in keeping with the principles that the courts encourage people to make their own agreements whether by mediation, arbitration or other means and this even extends to Children Act proceedings where recently the court upheld a decision reached by a religious court.
However, earlier this year we saw a very interesting decision handed down where Mr Justice Parker in the case of T v T upheld a separation agreement that had been made in 1991 and made it into an order. The court considered the Radmacher case. The wife argued there had been undue pressure and non disclosure. The husband argued that the agreement was one of “Magnetic importance” a phrase I suggest will be used as a benchmark for the future. The court did not find this to be the case and felt there was nothing to suggest the agreement was unfair and was therefore under no duty to consider the parties current positions.
So we now have a case which upholds an agreement made over 20 years ago but which both parties relied upon and carried into effect. This shows the importance of taking legal advice before entering into an agreement which could become a court order without the parties realising the effect.
By Family Law Solicitor & Mediator Gillian Davies
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