Are they worth the paper they are written on?
Unlike many other countries pre-nuptial agreements are not binding in England and Wales but is all this set to change?
A pre-nuptial agreement is a pre marital agreement setting out how the parties wish for their assets to be divided in the event of a marriage breakdown. Some believe it is a document for rich and famous celebrities and footballers but this could not be further from the truth. Whatever your assets are you have a right to protect them. Would you purchase a home without insurance? You probably wouldn’t so why would you not be willing to take insurance out on your future?
Pre-nuptial agreements are not and have never been binding under English law but recent case law indicates that his could be set to change in the future.
In the very recent ground breaking case regarding the enforceability of pre-nuptial agreements in the Court of Appeal, Katrin Radmacher and Nicolas Granatino (20./07/09), one of the Judges hearing the case stated that failure to recognise pre-nuptial agreements “does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace” .The judgement further acknowledged that Parliament needed to clarify the law on them.
The case overturned a previous decision to award Katrin Ratmacher’s husband £5.85 million of her £100 million fortune despite them agreeing in a pre-nuptial agreement that he would not claim upon divorce. The appeal court did award money by way of maintenance and a lump sum for a house on trust for the children of the relationship. This was outside the remit of the pre-nuptial agreement entered and it had specifically excluded any such settlements in any event. The couple had been married for 8 years.
It has to be noted that both parties were from jurisdictions where pre-nuptial agreements are binding and the agreement was made in Germany and would have been binding there. Nonetheless, the decision was made in an English court and it is the most encouraging acknowledgement for a long time that pre-nuptial agreements are going to be very influential in the court room. Now, more than ever, it is sensible to look at making a pre-marital agreement. Whilst it might not be the most romantic step to take it could end up being the most sensible one you ever took.
It is unknown whether Nicholas Granatino will appeal to the House of Lords but as yet, he has not.
Here at Stephensons we can help you prepare a pre-nuptial agreement specific to your needs and requirements so as to enable you to have the best possible chance of it being influential in the event that your relationship breaks down in the future.
By family solicitor Jackie Price