The grey depressing month of January has passed and the shops are awash with romantic cards for Valentines Day. For some it is the perfect opportunity to propose but should we take a step back and think what happens if the red roses are no longer welcome and love flies out of the window?
Would you enter into a prenuptial agreement? Divorce is not a happy time but a prenuptial agreement could save some of the anguish and allow people to go their separate ways without recourse to heavy and expensive litigation.
One of the leading cases in this area was Radmacher v Granatino in 2009 which paved the way for some recognition in this country. This case was clear in its principles that both parties must have received legal advice and have disclosed their assets to each other with no pressure to sign the agreement. The agreement must also be realistic and fair to both parties.
In 2011 came the case of Z v Z. In this case the agreement was upheld. The wife tried to depart from it as she wanted equality but the Judge excluded the sharing principle and recognised that the Husband would not have married had the wife not signed the agreement.
The most recent case of BN v MA 2013 has been decided by Mr Justice Mostyn in the High Court. He said such agreements ought to be given ‘heavy respect’. This was in a case of a very short turbulent marriage where the issue of domestic violence was raised. Shortly before the marriage, which only lasted 15 months, the couple signed a prenuptial agreement. The net assets were over £13 million and the wife would receive an annual index linked payment of £96,000 from the date of signing. Provision was made for maintenance for the children. It was noted that both parties were highly sophisticated intelligent people and had the benefit of legal advice.
Mr Justice Mostyn relied on the earlier case of Radmacher and said the test to be applied in every case was that the courts should ratify an agreement where both parties have a full appreciation of the implications of what they are signing and in such circumstances it would not be fair to do otherwise.
Prenuptial agreements are not law in this country unlike many countries in Europe, but recent case law indicates that some agreements are upheld. The Law Commission is due to release a report advising on reforms which should provide more certainty for couples. Many believe that such reforms would provide clarity for couples and mean that relationship breakdown would cause less anguish which in turn would be less damaging for children.
So, be romantic on Valentines Day, but see a specialist family lawyer as part of the marriage plans. After all it may be the biggest decision you make in your life. Would you enter into a commercial contract without legal advice I doubt it.