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The lottery of marriage - romance v commerce

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Family law is an unpredictable area…it is an art not a science.

In recent years there has been a move towards prenuptial agreements to try and avoid some of the distress and expense attached to the breakdown of a marriage. The central theme of determining a financial settlement is most commonly the parties’ needs, but what are needs? Does this mean lifelong maintenance? Other areas of uncertainty are the treatment of assets that one party brought into the relationship with no contribution by the other.

We are all aware of the famous case of Radmacher v Granatino in 2010 which paved the way for the recognition of prenuptial agreements. Subsequent cases followed, the most recent being BN v MA 2013 where Mr Justice Mostyn said such agreements should be given “heavy respect” and in this case he upheld the agreement on the basis that he was dealing with intelligent people with the benefit of legal advice.

Despite this move, the jurisdiction of the court cannot be ousted and Mr Justice Mostyn has just ruled against a prenuptial agreement being enforced. The agreement had been signed the day before marriage. This in itself suggests the wife may have signed under pressure and most importantly the agreement was perceived to be unfair.

The concept of fairness is one of the major principles that has emerged from recent case law on prenuptial agreements. So once again uncertainty arises. It is not known if this agreement had review clauses. It certainly would have been appropriate for an eighteen year marriage with four children.

And interestingly this judgment comes days before the Law Commission is due to publish their recommendations. The word on the street is that they will endorse them although it may not make its way to statute prior to the next election. The Law Commission has been looking at the concept of needs for the last five years against the background of various judicial decisions. However, the road is not likely to be straightforward with consideration having to be given to the vulnerable, those abused and the children.

So where do you stand? Is it time for this country to move into line with its European counterparts?