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To propose or not to propose? - That is the question

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February 29th 2012 – a leap year. Tradition dictates that a woman can ask a man for his hand in marriage. Historically it has never been seen to be appropriate for a woman to propose. In fact public humiliation could be faced if it is rebuffed. There are so many examples of this in literature for example, in Shakespeare’s Twelfth Night when Malvolio wrongly believes Olivia has sent him a love letter.

But should we encourage people to be impetuous? These days people are not getting married until they are much older and obviously their careers are established and they have built up assets. Should they get carried away with the romantic elements or do they need to cast a cautionary thought to what happens if the marriage fails?

Well, we lawyers are seen to be cynical and unromantic but that is not the case – we try to save people from the future anguish that they could face not to mention large sums of money. This brings me to the topic of prenuptial agreements.

This remains a fairly complex area of law and one has to say that prenuptial agreements are still not enforceable entirely in this country. The leading case was Radmacher v Granatino in 2009. The principles that have come out of the case law are that both parties should have received legal advice and the agreement ought to be signed in plenty of time before the wedding with both parties having disclosed to the other all their assets. Neither party must feel that they have been under any pressure to sign the agreement. The agreement must be realistic and fair and provide for changes such as the birth of children.

There has been another interesting case in 2011, a French case called Z v Z which was heard in the High Court. It was a big money case with assets in the region of 15 million. The agreement provided that the wife’s capital needs would be provided for on divorce but the assets would not be shared equally. The wife wished to depart from the agreement but the Judge upheld it and said that the sharing principle should be excluded. The Judge found that the husband would not have married had the wife not signed the agreement.

The overriding principle appears to be that the agreement needs to be fair and the Judge was able to interpret capital needs generously. One might argue that if the capital was insufficient to provide for the wife’s needs then the court may well have overturned the agreement.

By family law solicitor, Gillian Davies